Journal of the Australian Association Journal of the Australian Association of Consulting Archaeologists, Issue 1, 2013: 1-10 of Consulting Archaeologists
Volume 4 (Supplement), 2016
Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement)
JAACA 2016 Volume 4 (Supplement) Cultural heritage management and the law in Australia Papers from a workshop at the Australian Archaeological Association Annual Conference 2015 Guest editors: EMMA BECKETT and JJ McDERMOTT
Table of contents Introduction: a summary of a workshop on cultural heritage management and the law at AAA 1 2015 JJ McDERMOTT & EMMA BECKETT
Edict come, edict go: a critique of legislative approaches to the definition and conservation of 8 Aboriginal heritage sites in Australia IAN RYAN & JJ McDERMOTT
Aboriginal heritage law reform in NSW: ‘no future’? 20 STEVE BROWN
Native title and the Aboriginal Heritage Act (WA): an awkward relationship 29 ROBIN STEVENS
From ‘grudge purchase’ to valued asset: why compliance is no longer enough and we need to 40 provide work that has value and meaning JIM WHEELER
Cultural heritage, the law, and activism in Western Australia: Perspectives from the pindan at 49 James Price Point, Kimberley ELIZABETH VAUGHAN
An online survey regarding cultural heritage management and the law in Australia 62 EMMA BECKETT & JJ McDERMOTT
Front cover: JJ McDermott
©Australian Association of Consulting Archaeologists Inc. ISSN 2202-7890
Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement):1-7
Introduction: a summary of a workshop on cultural heritage management and the law at AAA 2015 JJ McDERMOTT and EMMA BECKETT
JJ McDermott (Gavin Jackson Cultural Resource Management, [email protected])
Emma Beckett (Extent Heritage, [email protected]) Here, we provide a summary of the papers and discussion at the workshop on cultural heritage management and the law in Australia, held as part of the Australian Archaeological Association (AAA) conference at the Esplanade Hotel in Fremantle in December 2015.
Introduction legislation nationwide. The workshop was designed to be an outlet for people of various On 1 December 2015, a full day workshop backgrounds and perspectives to come together entitled Cultural Heritage Management and the and discuss what they believe should be done to Law (CHM & the Law) was held at the Esplanade better manage and protect heritage in Australia. Hotel in Fremantle as part of the annual Through this discussion, we envisioned that we Australian Archaeological Association (AAA) could openly exchange views and opinions on the conference. The workshop organisers – Emma problems with current or changing legislation Beckett, Meg Berry, Sam Harper and JJ across the country, and through this process we McDermott – invited participants from various hoped that participants would be able to organisations across Australia, including brainstorm ways in which we could improve representatives from academia, government, the upon the current systems. legal profession, the mining industry, heritage consulting firms and an Aboriginal corporation, The workshop consisted of twelve presentations to attend and speak on the topic. The Western split into three sub-themed sessions over the Australian Department of Aboriginal Affairs course of the day. The presentations offered a (DAA) was also invited to send representatives range of views from speakers. There was a along to discuss recent changes to the particular emphasis on cultural heritage matters in administration of the Western Australian Western Australia (WA), specifically the Aboriginal Heritage Act 1972 (AHA), but the currently proposed amendments to the AHA, but offer was declined. an over-arching view of heritage legislation across the country was also established. About The workshop sought to create a dialogue about seventy people attended, indicating the current current heritage legislation and the way in which relevance of the topic to cultural heritage it is implemented in Australia. We were practitioners. The workshop concluded with a interested in exploring issues and/or round-table discussion that offered an opportunity inconsistencies that exist in legislation across the for speakers to stress their main points, as well as states and territories. This interest was principally giving the audience an opportunity to ask triggered by the proposed amendments to the questions or provide comment on the topic. AHA, as well as a general desire to better understand the processes involved in heritage
Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 1-7
A summary of each of the sessions and Edict come, edict go: an overview of presentations follows. legislative approaches to the definition and conservation of Aboriginal
archaeological sites in Australia Session 1: Political and archaeological Ian Ryan, Project Manager, Gavin Jackson Cultural Resource perspectives Management, Perth. Ryan presented a brief review of previous and The first session of the day sought to provide an current heritage legislation across Australia. He overview and context of State and Federal explained the stated purposes of various heritage legislation. Presentations provided legislative Acts and examined whether the details of the changes to the AHA, an exploration processes by which the Governments apply these of what defines a site in WA and an examination Acts are consistent with their stated purposes. of the criteria used to register and protect sites Ryan spoke about the variability among these under that Act. A review of approaches to Acts in how Aboriginal sites are defined and Aboriginal heritage protection nationwide was found that there is consistent ambiguity, thus also provided. making any clear definition difficult. His analysis A parliamentary context of Aboriginal found that the process of assessing Aboriginal heritage management in Western sites is usually embedded in land access Australia approvals and these can be detrimental to Robin Chapple, Member for the Mining and Pastoral Region at the Aboriginal heritage protection. The role of the Western Australia Legislative Council, The Greens. ‘assessor’ and its variation from state to state was Chapple gave an overview of his parliamentary also questioned. Ryan then looked at the work in the WA Legislative Council and in the possibility of shifting the protection of Aboriginal area of Aboriginal heritage management in WA heritage towards heritage agreements negotiated in particular. He also detailed the genesis and a under native title law and explored the strengths timeline of the events that led to the State and weaknesses of this concept. A more detailed Governments’ proposals to amend the AHA. The paper by Ryan and McDermott on this topic is State’s minerals sector, he explained, originally included in this volume. suggested the idea for changes to the government Defining archaeological sites in Western as far back as 2008. He went on to explain the Australia many legal 'grey areas' concerning Aboriginal Joe Dortch, Project Manager, Murujuga: Dynamics of the Dreaming heritage management in WA. Many of these have Research Project, Centre for Rock Art Research + Management, come to light in the past year or so and University of Western Australia, Perth. culminated with the Supreme Court decision Dortch detailed the current state of protection favouring Traditional Owners views about the afforded to Aboriginal archaeological sites in status of a mythological site in Port Hedland Western Australia and the alarming rate of de- Harbour. As part of this presentation, Chapple registration that has occurred over the last 10 outlined his belief that the proposed amendments years. This presentation was largely based on his to the AHA would not make it through parliament recent ‘Site Watch’ Project with Tom Sapienza, in their current form. He also stressed the view which was recently published as an article in that the DAA should have increased funding and JAACA (Dortch and Sapienza 2016). Site Watch resources to ensure the Aboriginal Cultural uses a database comprised of periodic downloads Material Committee (ACMC) can provide a more of the DAA Site Register. Using GIS the database thorough and careful assessment of Aboriginal is then assessed to examine changes to site sites. registration over time. Dortch highlighted a number of discoveries from the project, which
2 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 1-7 included changes in status to a number of sites Victoria’s Registered Aboriginal Party (RAP) without proper explanation for why this occurred. bodies stand as an example of what could be He also discussed the key criteria for determining accomplished across Australia to empower significance and how mutable the interpretation Aboriginal groups to protect their own heritage, of defining important sites has been. He queried while not diminishing the role of archaeologists. if the changes observed could be evidence of A paper by Brown on this topic appears in this DAA assessors regarding the significance and volume. importance of sites ascribed by field archaeologists as being exaggerated. Definition of a site under the Western Australia Aboriginal Heritage Act: Robinson v ACMC and the Marapikurrinya Session 2: Legislative focus and Yintha Traditional Owner perspectives Paul Sheiner, Principal lawyer, Roe Legal Services, Perth and Greg This session more closely examined the ways in McIntyre, Lawyer, John Toohey Chambers, Perth. which legislation is perceived and implemented Sheiner and McIntyre outlined the recent across Australia. The speakers, who provided a Robinson v Fielding [2015] WASC 108 Supreme variety of perspectives, discussed several areas Court case. This landmark case overturned a where current or changing heritage legislation has decision by the ACMC in 2013 to remove a had an impact. They explored the mechanics of mythological site, Marapikurrinya Yintha, heritage protection as well as the regulation of (located in Port Hedland Harbour) from the DAA heritage destruction. Traditional Owners spoke Register of Aboriginal Sites. The decision was about situations where their heritage was directly challenged by Sheiner and McIntyre on behalf of affected by legislative action and this formed a Kerry and Diana Robinson of the Marapikurrinya key aspect of this session. people, who argued that the site, which had been Aboriginal Law Reform in New South registered in 2008 after a rigorous assessment Wales: five years on and … waiting process, was a mythological site of significance. The ACMC decision was made following the Steve Brown, Lecturer in Archaeology (Heritage Studies), University of Sydney; President of the ICOMOS/IFLA International adoption of new guidelines for interpreting the Scientific Committee on Cultural Landscapes meaning of Section 5 (b) of the AHA in relation Brown discussed the slow road to the reform of to ‘sacred sites’. The guidelines stated that ‘for a Aboriginal heritage legislation in New South place to be a sacred site requires that it is devoted Wales. At the outset, the preferred model for to a religious use rather than a place subject to reform was for a stand-alone Aboriginal Cultural mythological story, song or belief’ (DAA 2013). Heritage Act, which would involve removing By applying these guidelines, the ACMC Aboriginal heritage from the National Parks and determined the site was no longer a site under Wildlife Act 1974 (NPW). Five years later, it which section 5 of the AHA applies. The court appears that little progress has been made despite case examined the meaning of ‘sacred site’ under the worthy intentions of government, Aboriginal the AHA and in his ruling, Justice Chaney groups, archaeologists and heritage practitioners. declared that the interpretative guidelines utilised Brown examined in detail why the process failed by the ACMC were legally incorrect. He also to achieve its aims by breaking down each phase found that Aboriginal people were not afforded in the reform process and critiquing the roles and procedural fairness in the decision. Sheiner and expectations of each group of the stakeholders McIntyre concluded that this important case will involved. He also examined the role of have implications for how the definition of a site archaeologists in law reform deliberations, in under the AHA is to be interpreted and applied in addition to Aboriginal heritage management. the future. Brown concluded by noting the State of
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Native Title and the WA Aboriginal indicated that the majority of Aboriginal people Heritage Act: an awkward relationship believe the current WA legislation inadequately Robin Stevens, Archaeologist and anthropologist, Stevens Heritage protects Aboriginal cultural heritage. He went on Services, Perth. to point out that heritage legislation should Stevens discussed the relationship between the extend beyond the maintenance of an AHA and the Native Title Act 1994 (NTA), archaeological record and look to protecting particularly as they are used by cultural heritage Aboriginal heritage and traditional values as a management practitioners and the mining whole. In searching for solutions, Piotrowski industry in WA. He explained the common examined the legal and ethical considerations for difficulties encountered when these two Acts both NTRBs and heritage consultants when must work in tandem during heritage surveys and advocating for change in state heritage policy. when developing heritage agreements. So, when a Traditional Owners, Ben Roberts and Peter heritage agreement is signed between an Windie also spoke about how they felt the AHA Aboriginal group and a development body, such was failing Aboriginal people and they suggested as a mining company, all parties are still bound that archaeologists and anthropologists should by the AHA. Therefore, parties are prompted into focus more on joining with Aboriginal groups to an administrative process whereby any heritage protect their heritage, rather than working for an place discovered on land to be developed is administrative process that helps destroy it. deemed to be the property of the State of WA. Noongar People's struggle to protect the This can be problematic and confusing for people Beeliar Wetlands in Perth who work in the heritage industry, not least Aboriginal people. Heritage, he stated, can easily Corina Abraham, Noongar woman, custodian of the Lake Coolbellup and Walliabup area of the Beeliar Wetlands, Perth. be reduced to a series of administrative processes. This in turn results in heritage being presented as Abraham provided a detailed case study about the a series of site boundaries rather than something failure of the AHA in protecting a significant site more meaningful to Aboriginal people. A paper for the Noongar people in Perth’s Beeliar by Stevens on this topic is included in this Wetlands. The site had previously been registered volume. by the DAA as a mythological site because of its connections to the Waugal (Rainbow Serpent). In The role of Native Title Representative February 2013, the ACMC recommended against Bodies and heritage consultants in policy granting consent for a new highway (Roe 8) to be development built through the site based on its cultural Silas Piotrowski, PhD candidate, University of Queensland, significance. However, in June 2015, the ACMC Brisbane, Ben Roberts, a Thudgari man, co-chair of Yamatji Marlpa reversed their decision based on a re-assessment Aboriginal Corporation (YMAC) and Peter Windie, a Thudgari man, chairman of Windi Mia Aboriginal Corporation and deputy co- by DAA archaeologists, and the site was de- chair of YMAC. registered despite strong community opposition. Piotrowski discussed the current state of play for Following this, the Minister granted consent for the AHA from the viewpoint of a Native Title the Roe 8 project to proceed. Abraham Representative Body (NTRB), specifically passionately explained the cultural significance of YMAC. This organisation has represented the site and the importance of the Beeliar Aboriginal peoples living in the Pilbara, Wetlands. She also lamented that proper Murchison and Gascoyne regions of WA for archaeological excavations were not conducted in many years, as well as advocating for Aboriginal the area when the site was re-assessed. Abraham rights for groups across the state. He presented concluded by detailing the tireless work and the concerns expressed by heritage consultants protest that has been ongoing in opposition to this working closely with native title parties, and decision. Most recently, this work has seen the establishment of the Lake Coolbellup & Lake
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Walliabup Nyoongar Cultural Advisory Group to important than ever to maintain a close working better advocate for the importance of the relationships with Aboriginal groups. wetlands. Multiple locations, multiple stakeholders, Session 3: Industry Partnerships and multiple legislation, one Cultural Heritage Activism Management Plan Robert Brock, Heritage Specialist, Pilbara Ports Authority (PPA), This session mostly focused on positive work Perth. currently being undertaken in relation to heritage Brock discussed the development and legislation through industry partnerships and implementation of a Cultural Heritage community activist groups. Industry Management Plan (CHMP) by the Pilbara Ports representatives described their experiences when Authority (PPA). A major challenge in the working with heritage legislation and how it development of the CHMP was ensuring that affects their relationships with Native Title bodies cultural heritage be appropriately and consistently and Traditional Owner groups. A detailed history managed across multiple diverse locations. He of the interaction between heritage consultants indicated that, first and foremost, it was and the legislation in which they work under in imperative that the CHMP recognise the Australia was also offered. A discussion on the importance and significance of the rich and importance of social activism in effecting change diverse heritage located on the lands and waters in heritage protection and legislation concluded that the PPA intend to utilise. Moreover, the the session. views of the numerous, different stakeholders Applied cultural heritage management needed to be accounted for, while also complying and the law: an industry perspective with Federal and State legislation. An outline of Annabelle Davis, Specialist in Cultural Heritage, Rio Tinto Iron the CHMP was given as well as an indication of Ore, Perth. the range of heritage sites that are to be managed. Davis offered insight into the way that cultural These include Aboriginal mythological sites, heritage management is applied in the mining engravings, stone arrangements, middens, artefact industry, specifically detailing the policies and scatters as well as historic ruins and maritime procedures developed by Rio Tinto, a large global heritage sites. mining company (Rio Tinto 2011). These policies A history of interaction between the and procedures focus on recognising and heritage consulting industry and the law respecting cultures and the heritage found on the Jim Wheeler, General Manager, Extent Heritage Pty Ltd, Sydney. traditional lands of Aboriginal people where mining activities are planned. Davis stated that Wheeler described the development of cultural effective and consistent cultural heritage heritage legislation in Australia. He examined the management is imperative in order to maintain drivers for establishing the initial heritage good relationships with Aboriginal People, protection legislation and how this legislation something which is fundamental for Native Title developed with the growth of the heritage and land access agreements. She explained that consulting industry. He discussed how legislative cultural heritage management is one of the many and policy shifts affect the nature of heritage components of these land access agreements and consulting across Australia, in particular as it the minimisation of impact to heritage sites is a relates to the quality of cultural heritage key consideration. Davis pointed out that mining management outcomes. The political motivations companies face an increasingly complex underlying legislative and policy reform affecting landscape of stakeholder expectations and the current protection and management of cultural legislative change, which makes it more heritage, particularly in WA, were also described. Wheeler concluded by highlighting the important
5 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 1-7 role that heritage consent authorities and volume). Several of these offered starting points consultants play in encouraging meaningful for the round table discussion. As the discussion outcomes from the heritage assessment and developed, a number of key issues and questions management process, both of which create value were also raised by the speakers and the for the Aboriginal community as well as the audience, as follows: broader community. A paper by Wheeler on this • the functions of heritage legislation in topic appears in this volume. Australia – does it facilitate protection or The role of social activism in relation to destruction of heritage?; Aboriginal heritage and the law in • the perception of impropriety and a Western Australia diminution of protection for heritage sites Liz Vaughan, co-founder of Aboriginal Heritage Action Alliance, under the AHA; WA and Save the Kimberley Group, WA. • positive and negative aspects in the Vaughan argued that social activism can play an implementation of heritage legislation in important role in advocating for changes to the NSW, Victoria and Queensland; protection of Aboriginal heritage. She described • advantages and disadvantages that may occur her experiences while working with the Save the if different state heritage Acts are abolished Kimberley organisation to protest the destruction in favour of a new, over-arching national of heritage places and the natural environment at heritage legislation; and James Price Point near Broome in WA, as well as • potential advantages and disadvantages in speaking about her current work with the combining historic and Aboriginal heritage Aboriginal Heritage Action Alliance (AHAA). legislation. The Save the Kimberley organisation, originally At the conclusion of the discussion it was established to oppose Woodside’s development apparent that there are serious concerns regarding of a gas hub at James Price Point in 2009, heritage protection currently, not only in WA but consists of Traditional Owners, local community all across Australia. These issues, unsurprisingly, members and various other professionals from revolve around increased development such as across Australia. Several protests were organised mining, particularly in states such as WA and around WA and Vaughan presented a video Queensland, but are equally found in other states portraying one such protest, which occurred at the through road infrastructure and housing gas hub site itself. Vaughan also spoke about the developments. An increase in bureaucratic AHAA protests against the current, controversial processes has clearly evolved around the amendments proposed for the AHA. A paper by management of heritage sites in all of the states Vaughan on activism against the James Price and territories. Many participants agreed that this Point development is included in this volume. has had a negative impact on heritage site protection. There was a unanimous feeling Round table discussion amongst those at the workshop that a solution to The round table discussion began with a these perceived impacts would need to be derived presentation by McDermott outlining the quickly. Although the idea of an over-arching preliminary results of an online public survey, national heritage legislation was discussed, many which was themed specifically on CHM & the felt that this might damage the important Law. The survey was created to collect the processes already in place in some states. In opinions of CHM practitioners who were unable particular, many believe that such a strategy to attend the workshop. A broad range of might damage relationships between Aboriginal opinions and comments were expressed through groups and large industrial businesses. Some the survey (see Beckett and McDermott, this suggested that a more rigorous model for heritage
6 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 1-7 protection, such as the one employed in volume are a step towards continuing this Victorian, might be a good model that could be discussion. replicated throughout the country. Others, however, countered that by saying the Victorian References system is inflexible and limits the range of Department of Aboriginal Affairs (DAA) 2013, SECTION 5 OF options for innovative solutions that may enhance THE ABORIGINAL HERITAGE ACT 1972. Information leaflet. heritage protection. Previously available [8 October 2014] from:
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Edict come, edict go: a critique of legislative approaches to the definition and conservation of Aboriginal heritage sites in Australia
IAN RYAN and JJ McDERMOTT
Ian Ryan (Gavin Jackson Cultural Resource Management, [email protected])
JJ McDermott (Gavin Jackson Cultural Resource Management, [email protected]) In this article, we offer a framework for a much-needed critical review of heritage legislation in Australia. We discuss the assessments of significance and importance of Aboriginal heritage places and objects, which have been the primary function of many Acts. While assessments were originally focused on principles drawn from the disciplines of archaeology and anthropology, this has recently changed to incorporate Aboriginal cultural values. We explore whether this change has been concomitant with a greater representation of Indigenous views in defining what constitutes Aboriginal heritage sites. We also focus on the significant decline in the number of Aboriginal archaeological sites being legally defined as Aboriginal heritage sites by some state governments (particularly Western Australia). The influence of the Native Title Act 1993 on Aboriginal heritage management and protection is also discussed. Finally, we explore what we see as potential opportunities for the archaeological and anthropological consulting community to more closely align our conceptions of significance with those of the primary custodians of that archaeology, Aboriginal Australians, in such a way that may lead to the conservation of more archaeological sites.
A proposed framework for a critique of objects, and (2) Acts that only protect Aboriginal heritage legislation ‘significant’ Aboriginal places and objects. The idea of blanket protection for Aboriginal heritage All Aboriginal heritage Acts currently in use in sites nominally applies in many of the Acts, Australia state that they exist primarily to explicitly mentioned as such in the Australian conserve or protect Aboriginal cultural heritage.1 Capital Territory (ACT), Northern Territory There are two legislative and regulatory (NT), Victoria, Tasmania and South Australia approaches to that protection: (1) Acts that grant (SA) Acts. However, this has usually been blanket protection of all Aboriginal places and diminished in practice, typically within the regulations associated with these Acts or simply 1 The authors emphasise that they are not lawyers in the way that the Acts are administrated. We and any misunderstanding of the legislation discuss this in more detail below. discussed here may reflect a lack of legal training and/or interpretation. The authors are currently We suggest all Australian heritage professionals consulting archaeologists that have primarily should formulate critiques of the current worked in Western Australia and appreciate that Aboriginal heritage legislation and the manner in they may not be as familiar with all of the which they are administered in order to sustain nuances unique to the management of heritage the protection of Aboriginal cultural heritage in resources elsewhere in Australia.
Article History: Received 27/06/2016, Accepted 04/01/2017 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 the future. A sound basis for this critique should (Ritchie 1996:29). This reflected the widely held focus on three key questions: public view at the time that Aboriginal cultures were, in essence, a relic of the past and that any 1. How are significant Aboriginal heritage extant Indigenous people were ‘the last of their places and objects defined in legislation? tribe’ (Lydon 2005:114). Even when the motives 2. How is the significance and importance of of the prime movers of these Acts are viewed Aboriginal places and objects assessed, and is from a more generous position it is difficult not to the basis of these assessments made conclude, as Annie Ross did, that the aim of these transparent? Acts was ‘…to protect the resource of value to a 3. Are Aboriginal heritage values at the centre particular profession, rather than the cultural of the assessment process and, when a heritage value to the people who created it’ council or formal entity assess sites, are they (Hayes 2009:4). independent and are Aboriginal people directly involved in such deliberations? The colonised people whose cultural heritage was the focus of these Acts were rendered inactive In order to develop this critique, we will first and uninvolved in these legislative attempts to establish a background to the Aboriginal heritage conserve Aboriginal cultural heritage. Indeed, at Acts, briefly reviewing the course that legislation least one of these Acts, the Tasmanian Aboriginal has taken throughout the last half century or so Relics Act 1975, which is still active today, and exploring how it has evolved to its present specifies a date after which places or objects state. could no longer be considered as Aboriginal Background to past and present relics i.e. 1876, the year that Truganini (then Aboriginal heritage legislation in Australia thought to be the last fully-descended Tasmanian Aboriginal person) had died. This presupposed Legislative protection of Aboriginal heritage in that no living Aboriginal person would have a Australia began with the NT Native and valid or meaningful perspective on defining what Historical Objects and Areas Preservation Act constitutes a place or object of Aboriginal 1955-60, followed by the SA Aboriginal and heritage value (Smith 2000:112). Historic Relics Preservation Act 1965 and the Queensland Aboriginal Relics Preservation Act Jurisdiction Legislation / Committee Year NT Native and Historical Objects and Areas 1955-60 1967. Similar legislation was rolled out around Preservation Act the country in the late 1960s and throughout the SA Aboriginal and Historic Relics Preservation 1965 1970s (see Table 1). The Commonwealth Act Australian Heritage Commission Act was NT Aboriginal Lands Trust Act 1966 introduced in 1975 and aimed to fill the gaps Qld Aboriginal Relics Preservation Act 1967 where state legislation was considered NSW Aboriginal Relics Advisory Committee 1968 established inadequate. Many of these early Acts are often NSW National Parks and Wildlife (Amendment) 1970 called ‘relics’ Acts, referring to the language used Act in their titles or aims, and tended to conceptualise WA Aboriginal Heritage Act 1972 Aboriginal heritage as fixed in time to the deep Vic Archaeological and Aboriginal Relics 1972 past. Preservation Act NT Aboriginal Land Rights Commission 1973 The key stakeholders in these original ‘relics’ established Acts were not Aboriginal people but were Tas Aboriginal Relics Act 1975 anthropologists and archaeologists (Flood Cwlth The Commonwealth Australian Heritage 1975 Commission Act 1989:80). Places and objects were usually considered in terms of their importance or Table 1. Key moments in the early legislation of Aboriginal heritage in Australia significance as an insight into ‘prehistory’
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The NT Aboriginal Sacred Sites Act was lobbied to have this Act amended to include established initially in 1979 and it significantly specific protection for ‘…objects and places of differed from the other early heritage acts. particular significance to Aboriginal people in Produced as complementary legislation to the Victoria…’ (Edelman et al. 2010:5). By the mid- Aboriginal Land Rights Act 1976 (an Act that was 90s however, the Act was seen as ineffective in conceived in response to Indigenous civil and providing any meaningful protection. In her political agitation over land ownership in the review of the legislation, Justice Evatt (1998:8) mid-twentieth century), the Aboriginal Sacred lamented the meddling of politics in the decision- Sites Act 1979 was designed to provide legal making process stating that: protection for ‘sacred sites’ in the territory Few regimes give Indigenous people control (Edelman et al. 2010:2). These were defined as over assessments or any real involvement in ‘…a site that is sacred to Aboriginals or is protection or policy development processes, otherwise of significance according to Aboriginal and decision makers have a wide discretion tradition’ (Part 6, Section 69). Importantly, the to permit damage or destruction of significance of these sites was to be defined by significant sites. The result is that protection Aboriginal people. Moreover, for the first time decisions depend to a great extent on since European occupation, here was legislation political considerations. that acknowledged living Aboriginal people as Jurisdiction Legislation the primary custodians of their own heritage. This ACT Heritage Act 2004 reflected the then-dominant belief that NSW National Parks and Wildlife Act 1974 (amended in 1996, archaeological sites constituted part of the 2001 and 2010) ‘universal heritage’ and they were therefore best NSW Heritage Act 1977 (amended in 1991) assessed by heritage professionals, but sacred NT Aboriginal Sacred Sites Act 1989 sites were of value only to Aboriginal people. NT Heritage Act 2011 NT Aboriginal Land Rights Act 1976 (Administered by the During the late 1970s there was a general Commonwealth) recognition in some states that Aboriginal people Qld Aboriginal Cultural Heritage Act 2003 should be involved in the assessment of heritage Qld Torres Strait Islander Cultural Heritage Act 2003 sites, particularly in South Australia (Wiltshire SA Aboriginal Heritage Act 1988 and Wallis 2008:106) and Western Australia Tas. Aboriginal Relics Act 1975 (Chaloner 2004:60). Additionally, the right of Vic. Aboriginal Heritage Act 2006 (amended 2013) Aboriginal people to determine and nominate WA Aboriginal Heritage Act 1972 (amended 1980, 1995 and places of heritage significance was integrated into 2004) Cwlth Environmental Protection and Biodiversity Conservation the New South Wales Heritage Act 1977 and was Act 1999 (amended in the Environment and Heritage central to a proposed replacement for the Legislation Amendment Act (No. 1) 2003 and 2006) Victorian Archaeological and Aboriginal Relics Cwlth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (amended 1987) Preservation Act 1972 that was defeated in the Cwlth Protection of Movable Cultural Heritage Act 1986 Victorian Upper House by the State Opposition Cwlth Native Title Act 1993 majority (Edelman et al. 2010:5). Indeed, the Table 2. Current and relevant Acts that deal with Commonwealth’s Aboriginal and Torres Strait matters of Aboriginal heritage in Australia Islander Heritage Protection Act 1984 was drafted as a response to failures in, and disputes There have been many changes to Aboriginal arising out of, state and territory Aboriginal heritage legislation in Australia since the mid- heritage legislation. Having been frustrated in the 90s, with some state Acts having been completely aforementioned attempt to integrate Aboriginal abolished and replaced by new Acts (such as in perspectives into a new heritage protection Act, Queensland and Victoria). There have also been the Victorian State Government successfully some attempts to reform state heritage legislation
10 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 in recent years but as of yet, these have not seen Legislative processes for assessing any outcome (such as in New South Wales and significance and importance in Aboriginal Western Australia). In addition to several federal heritage legislative Acts, all states and territories in Each state or territory assesses the significance Australia now have some form of legislation in and/or importance of Aboriginal heritage sites in place that acknowledges Aboriginal cultural various ways. All maintain registers of heritage (see Table 2). Aboriginal heritage sites, that have been assessed as significant. These are usually indexed and Definition of significant Aboriginal searchable to help stakeholders in managing the heritage places and objects protection of these sites during ground Most of the Acts discussed here provide a disturbance development. Aboriginal heritage site definition of what constitutes a significant registries usually include a record of all sites Aboriginal heritage site. Nevertheless, these are assessed by the government department often ambiguous with little distinction made irrespective of the results of this assessment. Each between archaeological significance and state and territory has a term for Aboriginal ethnographic significance (see Table 3). While heritage places that have been assessed and some terminology is common, there is considered to constitute significant Aboriginal considerable variation between the definitions sites under the relevant Acts, referred to as provided in each of the different state Acts. ‘Registered Aboriginal Sites’ in the ACT, SA and Indeed, the complex and contested notion of WA, ‘Declared Aboriginal Places’ in NSW, ‘significance’ informs the assessment of all sites ‘Declared Heritage Places’ in NT, ‘Protected even where it is not formally stated. Sites’ in Tasmania, ‘Aboriginal Cultural Heritage Five Acts – the National Parks and Wildlife Act Places’ in Victoria and ‘Significant Aboriginal 1974 (NSW), Aboriginal Sacred Sites Act 1989 Areas’ in Queensland. (NT), Aboriginal Heritage Act 1988 (SA), It is important to note that in most states and Aboriginal Heritage Act 2006 (Vic.) and the territories there has been a tradition of assessing Aboriginal Heritage Act 1972 (WA) – refer some sites as being significant places, while specifically to significance directly attributable to simultaneously (or subsequently) granting Aboriginal people and/or their traditions. The permission to destroy or disturb them. Aboriginal Cultural Heritage Act 2003 (Qld) Throughout the last 40 years in WA, for example, refers to notions of significance but does not a great number of places were assessed and mention significance to Aboriginal people. On registered (i.e. were entered onto the state register the other hand, it does discuss archaeological as ‘Registered Aboriginal Sites’) but permission significance, as does the Aboriginal Heritage Act to destroy these places was granted through the 1972 (WA) and the Aboriginal Heritage Act 1988 section 18 process, as stipulated in the Aboriginal (SA). Three Acts – the Aboriginal Relics Act Heritage Act 1972 (WA). A change in policy led 1975 (Tas.), Heritage Act 2011 (NT) and the to a dramatic drop in the proportion of all Aboriginal Heritage Act 2006 (Vic.) – also reported Aboriginal heritage places being added appear to offer blanket protection for all to the register as ‘Registered Aboriginal Sites’ Aboriginal archaeological sites but do not offer between 2012 and 2015 despite no change explicit definitions of archaeological significance. occurring in the Act itself (Dortch & Sapienza 2016:1). This suggests an interpretative change in the definition of significance by the WA Department of Aboriginal Affairs (DAA), even
11 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 though the change had never been previously the area of proposed development. At the time of communicated to stakeholders. writing, Aboriginal heritage sites are assessed in WA by a government-appointed body, the Assessment by independent committee Aboriginal Material Cultural Committee In NT, SA and WA, Aboriginal heritage sites are (ACMC), although the Minister for Aboriginal reported to the appropriate department by a Affairs is free to ignore the ACMC’s advice relevant cultural heritage manager or stakeholder (Barnsby 2013:19). and then assessed by a legislatively required A unique approach to site assessment is utilised council or committee. Sites are assessed against in the NT. Where development is proposed and an established set of criteria, usually outlined in there is a likelihood of the presence of Aboriginal legislative guidelines. In some states, such as and Macassan archaeological places, the Heritage WA, the processes by which the sites are assessed Branch of the Department of Lands, Planning and are confidential. In all, however, the relevant state the Environment recommend that they should be government Minister makes the final decision on approached for advice. The Heritage Branch what sites are considered significant and if they provides advice to proponents about what steps, if can be disturbed. any, need to be taken in order to ensure The Aboriginal heritage assessment process in compliance with the Heritage Act 2011 (NT). SA is administered by the Aboriginal Affairs and This includes information about the existence of Reconciliation (AAR) section of the Department known Aboriginal and Macassan archaeological of State Development. According to guidelines places, and where there are no known places, provided by the department in the past, the AAR advice about the likelihood of such places ‘strongly advises’ that all development that will existing there. Where adequate information is not likely affect unknown Aboriginal sites should be available to assess the impact of the proposed carried out under a section 12 permit to determine development, the Branch require an whether there are Aboriginal sites or objects of archaeological survey to be undertaken, in significance in the area. An Aboriginal heritage accordance with a provided scope of works. committee consisting of Aboriginal persons Where archaeological sites are located during appointed from across the state assess any such surveys, an application is made to the reported sites or objects and provides advice to Heritage Branch requesting to disturb the sites. the current Minister for State Development (or an These applications are then provided to the appointed Inspector), who has the final say in any Heritage Council, which consists of eleven assessment of an Aboriginal site or object members elected from various organisations such (Edelman et al. 2010:57-58). as the National Trust, the Aboriginal Areas The assessment of Aboriginal heritage sites in Protection Authority (AAPA), the Department WA usually, but not always, occurs in the context itself, individual land owners, local government of applications by various developers to disturb representatives, and two people of Aboriginal areas of land in a procedure outlined in section 18 descent. The Council reviews each nominated site of the Aboriginal Heritage Act 1972 (WA). and then makes suggestions to the Minister as to Developers are obliged to demonstrate an attempt the significance of each place. Places considered to identify Aboriginal heritage issues within an significant are added to the state register of area proposed for development to the DAA. This Heritage Sites (Edelman et al. 2010:36-41). usually requires proponents to provide evidence Cultural Heritage Management Plans of consultation with appropriate registered Native Queensland, Victoria, NSW and ACT all require Title claimant groups. Proponents typically a detailed Cultural Heritage Management Plan include systematic records of any archaeological (CHMP) to be submitted to the relevant or ethnographic places and objects located within
12 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 government department as part of any Importantly, the Minister also decides what development proposal. Where any Aboriginal Aboriginal heritage sites or objects outlined in a place or object is located, a systematic record of CHMP are added to the state’s Aboriginal the site is made and assessed by an independent Cultural Heritage Register (Burke & Smith body and/or public servant before being sent for 2007:142). approval to the relevant Minister, or in the case of In Victoria, a cultural heritage advisor prepares a Victoria, the Secretary of the Department of report on behalf of a proponent outlining an Premier and Cabinet (although the Minister for assessment of potential impact to Aboriginal Aboriginal Affairs also plays a role in Aboriginal heritage likely to result from a proposed heritage management here). Victoria, NSW and development. Developers may then make an ACT also use a permit system that allows for application for a Cultural Heritage Permit in some sites to be disturbed, but in Queensland this order to conduct activity that ‘will, or is likely to, appears to be available but not often utilised harm Aboriginal cultural heritage’ (Hayes (Burke & Smith 2007:141). 2009:15). The Secretary of the Department of The assessment of Aboriginal heritage places and Planning and Community Development must objects in Queensland is undertaken by the then show this application to Registered Department of Aboriginal and Torres Strait Aboriginal Parties (RAP bodies) who have 30 Islander Partnerships. The system of management days to indicate if they approve of the action or and protection of Aboriginal heritage sites in wish to apply conditions. The Aboriginal Queensland (including the Torres Strait Islands) Heritage Council of Victoria, made up of eleven is outlined in the duty of care guidelines for the Traditional Owners appointed by the Minister of Aboriginal Cultural Heritage Act 2003 Aboriginal Affairs, makes decisions on the RAP (Queensland Government Department of bodies’ applications and provides further advice Aboriginal and Torres Strait Islander and to the Secretary. This system appears to empower Multicultural Affairs 2004). This document sets local Aboriginal stakeholders to determine what out a framework for proponents to assess whether constitutes a significant Aboriginal site, but it has heritage sites will be impacted by their works and been strongly criticised in the past on a number of also encourages direct negotiation with grounds (Kelleher 2008; Zorin 2014). appropriate Aboriginal stakeholders. The As mentioned above, the assessment of provision of an agreement between proponents Aboriginal heritage places in NSW is embedded and Aboriginal stakeholders (Native Title in an Aboriginal heritage impact permit system. claimant groups or other Aboriginal corporations) Rather than considering Aboriginal heritage removes the need for a permit to be obtained places or objects in isolation, Aboriginal heritage before CHMPs are prepared (Hayes 2009:37). in NSW is in principle assessed as part of the Aboriginal parties are responsible for assessing landscape. Regulation 80C of the National Parks the level of significance of places or objects and and Wildlife Act 1974 regulations states that may engage a specialist consultant (archaeologist proponents must carry out a community or anthropologist) if so desired. In recognition of consultation process. This involves informing the the fact that this system of heritage self- relevant Native Title holders or claimants, and regulation could sometimes be problematic, a inviting them to contribute to a cultural heritage series of potentially strict penalties can be assessment report. Under Clause 80C(6) of the imposed on an individual or body where they regulations, a draft of this report is then provided have destroyed potentially significant Aboriginal to each registered Aboriginal party who have at cultural heritage. The Minister is a key figure in least 28 days to review and provide comment. this system as they are empowered to implement The Director General of the Department of a ‘stop order’ on any development works.
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Environment, Climate Change and Water then 1975. The Director then makes a reviews the provided report and determines if a recommendation to the Minister of the proponent’s application for an Aboriginal department. According to the current available heritage impact permit will be approved website for AHT, sites are assessed by Aboriginal (Edelman et al. 2010:74-76). Heritage Officers who are Aboriginal people with specialist training and skills that have been The ACT’s Heritage Act 2004 states that all endorsed by their community Aboriginal places and objects are assessed by a (http://www.aboriginalheritage.tas.gov.au/about- Heritage Council that, as stated in section 17(3) aboriginal-heritage-tasmania). They investigate of the Act, includes at least one representative of areas of land for the presence or absence of the Aboriginal community and may include Aboriginal heritage and provide advice on the experts in anthropology, history or archaeology. ongoing management of this heritage to AHT. In conducting heritage assessments, the council is Despite heritage site recordings being undertaken required to consult with Representative by people of Aboriginal descent, it has been Aboriginal Organisations (RAOs) before argued that the definitions of Aboriginal heritage determining if a place or object should be in the outdated Aboriginal Relics Act 1974 are provisionally added to the heritage register very restrictive (Boer & Wiffen 2006:296). (outlined in section 20 of the Act). If proposed Developers also commonly use the defence of development may interfere with the heritage ‘ignorance’ when damage to Aboriginal heritage values of an Aboriginal place or object occurs (Smith 2000:114). A lack of integration (provisionally registered or not), a series of with the broader planning system and a lack of permits is used to structure the heritage enforcement or regulation of the quality of assessment process; this includes Excavation Aboriginal heritage assessments unfortunately Permits and Statement of Heritage Effect permits. persist in Tasmania despite a recent attempt to These permits usually require the involvement of align to the Victorian and NSW model of a cultural heritage specialist. Where disturbance Aboriginal heritage management (Smith of sites or objects is likely, a conservation 2000:113-114). management plan must be prepared by a cultural heritage specialist in consultation with each RAO Discussion: a general critique of present and approved by the council. The council may Aboriginal heritage legislation also produce site or object-specific Heritage Guidelines that outline site assessments and As explored above, the assessment of the formalises recommendations about management significance of Aboriginal heritage places and of heritage values (ACT Department of objects in most states and territories is regulated Environment and Sustainable Development in such a way as to embed it in a land access 2011). approvals process. As with all legislation that regulates the conservation of natural and cultural Pre-development assessment resources, these Acts offer a legal framework for When Aboriginal sites are located in Tasmania assessing heritage values in the face of potential and cannot be avoided by development, a permit disturbance. must be applied for through Aboriginal Heritage We then suggest that a key element of all of these Tasmania (AHT), part of the Cultural Heritage Acts is that they are designed to: Division in the Department of Primary Industries, Parks, Water and Environment. In the first 1. compel developers to conduct an assessment instance, all recommendations and considerations of Aboriginal heritage before any significant are presented to the Director of National Parks ground disturbance activities are carried out and Wildlife as per the Aboriginal Relics Act
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that may compromise the heritage values of a a public servant or Minister always has power of place; veto. The degree to which these bodies are 2. outline and define what Aboriginal heritage independent is difficult to determine, although we places and objects will not be allowed to be suggest that the presence of government- disturbed by the state; and appointed representatives from departments or 3. establish an authority that can make legally bodies with vested interests in promoting binding determinations on these issues and development somewhat undermine confidence in prosecute any offenses against the relevant the independence of this process. Acts (where such prosecutions are possible). Finally, an additional general criticism one can Aboriginal heritage values are defined and level at almost all of the current state, territory assessed in various ways in current legislation, and federal Aboriginal cultural heritage Acts is but, we believe, have historically tended to favour that they tend to focus on heritage places and academic archaeological or anthropological objects in isolation. This is inherent in a system definitions. Indeed, as Brown (2008:25) noted, where the requirements for reporting Aboriginal the ‘…value of heritage items is often expressed heritage places and objects to the relevant by Aboriginal people…in archaeological terms government bodies force Aboriginal stakeholders because this is the language of the legislation.’ and heritage consultants to consider and describe This has long been seen as a serious problem in Aboriginal heritage on a place by place (or object an industry where it has sometimes been difficult by object) basis. A far more useful and to align Aboriginal empowerment in management meaningful way of considering Aboriginal of their own heritage with the ‘scientific’ heritage would be an approach that considers the objectives of archaeologists and anthropologists. landscape as an occupied place, where all An additional problem is that the site recordings, archaeological materials, ethnographic which are the subject of the government- observations, recollections of Aboriginal sanctioned significance assessment, are primarily stakeholders and other sources of Indigenous done by cultural heritage management cultural experience and knowledge have the professionals who are somewhat removed from potential to provide information about past (and their relevant academic disciplines (North present) Aboriginal occupation. This way the 2006:2). significance of a place could be more fully explored, than is currently the case. Also, a There is clearly an inherent tension in how the heritage landscape approach would require more significance of Aboriginal heritage places and interdisciplinary collaboration and make better objects is assessed and, in particular, who is use of the specialised expertise of all permitted to contribute to these assessments. The stakeholders. fact that some state government agencies, such as WA, do not provide clear guidelines about the The impact of the Native Title Act 1993 criteria against which sites are assessed suggests there is a reluctance to allow this process to be The most significant legislative change to the externally scrutinised in any meaningful way. legal status of Aboriginal heritage since the era of Indeed, it is difficult not to conclude that this is the ‘relic’ Acts is the introduction of the Native simply a mechanism through which control can Title Act 1993 (Cwlth). Native Title is defined be exerted over what and when places or objects under section 223 of this Act as: are assessed as significant. Furthermore, the NT, …the communal, group or individual rights SA, Victoria and WA Acts all require Aboriginal and interests of Aboriginal peoples and heritage places are conducted by councils or Torres Strait Islanders in relation to land and committees, which include Aboriginal people, but waters, possessed under traditional law and custom, by which those people have a
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connection with an area which is recognised agreements as downloadable PDFs (WA under Australian law. Government Department of Premier and Cabinet Although primarily established to provide a 2012). framework for the recognition of Aboriginal The introduction of Native Title legislation in the rights to land through what has historically been a 1990s and the associated change, where lengthy process of assessing Native Title claims, Aboriginal heritage is managed in the context of the Act is also interpreted as empowering state-based legislation to direct management by Aboriginal Traditional Owners to manage their Aboriginal groups through ILUAs and heritage own heritage. A key concept in the Act is that of agreements, render previous heritage procedures ‘future act’, described as ‘… a proposed activity redundant to some extent. While anecdotal on land and/or waters that may affect Native evidence suggests that agreements have been Title’(http://www.nntt.gov.au/Pages/Glossary.asp negotiated between Native Title x). The Act requires that any party intending to claimants/holders and developers that essentially undertake a ‘future act’ over an area subject to ignore the Aboriginal Heritage Act 1972 (WA), Native Title must negotiate with any person or section 7.2 of the Western Australia Standard body corporate who holds Native Title or has a Heritage Agreement clearly states that signatories registered Native Title claim over the area, a are required to continue to comply with this Act. requirement referred to as the ‘right to negotiate’ So has the Native Title Act 1993 been (http://www.nntt.gov.au/futureacts/Pages/default. unequivocally beneficial for Aboriginal heritage? aspx). Any change in heritage management that helps The Act includes an extensive section Aboriginal people assert control over their (subdivision B of Division 3) outlining heritage must be seen as an improvement on the Indigenous land use agreements (ILUAs, also status quo, particularly if this results in the known as ‘body corporate agreements’) that are empowerment of Indigenous stakeholders to intended to formalise negotiations relating to define what constitutes a significant site (i.e. a ‘future acts’. As such, ILUAs usually outline a place that must not be destroyed during series of negotiated terms and conditions relating development). Indeed, there is a growing body of to development projects, access to land, evidence suggesting that Aboriginal notions of compensation or royalties from mines or similar significance in heritage management have resource extraction, or even the extinguishment become far more important as a consequence of of Native Title. These agreements often include the Native Title Act 1993 (see Brown 2008; sections dealing explicitly with cultural heritage Godwin 2005; Lilley 2000). Some concerns have or referring to completely separate heritage been raised about the level of corporate agreements. The National Native Title Tribunal stakeholder coercion in Native Title negotiations, website emphasises that ILUAs are intended to the level of transparency in these negotiations, facilitate ‘…flexible, pragmatic agreements…’ so and in the independence of the National Native as to avoid unnecessary expensive legal action Title Tribunal (Cleary 2014). when conflicts between Native Title holders and We suggest, however, that the enthusiasm for other stakeholders arise (National Native Title reforming the Aboriginal heritage approvals Tribunal 2014). Although the Native Title Act process towards a system favouring ILUAs and 1993 is a federal act, ILUAs and Heritage heritage agreements shown by some elements of Agreements have primarily been the the Australian political establishment gives pause responsibility of state governments. For example, for thought. The current WA Minister for the Department of Premier and Cabinet of the Aboriginal Affairs, Hon. Peter Collier MLC, was Western Australian State Government currently quoted by the ABC News in August 2015 saying provides a guide to ILUAs and heritage
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‘…the current Aboriginal Heritage Act 1972 is circumstances and terms Aboriginal heritage sites outdated…[and]…was drafted more than 40 may be destroyed or impacted during years ago, before Native Title gave traditional development. While most of the current state, owners the right in law to speak for their territory and federal Aboriginal cultural heritage country…’ (Garty 2015). This suggests the key Acts do little to empower Aboriginal people to reason for reforming state Aboriginal heritage assess and manage their own heritage, they do legislation is to empower Aboriginal people by continue to protect many Aboriginal heritage protecting heritage places that they believe are objects and places. Additionally, these Acts force significant. However, this was not the primary a level of engagement between industry and motivation for the wide-ranging ‘Review of Aboriginal people in recording and assessing Approvals Processes in Western Australia’ places these Acts were designed to protect. prepared for the Minister for Mines and Moreover, we suggest that another positive Petroleum in April 2009 that initiated and outcome of these Acts is a large and detailed informed this reform. In the document outlining record of the Aboriginal archaeology of some this review the Hon. Peter V. Jones AM, sections of Australia (albeit of admittedly chairman of the industry working group that variable quality) destroyed by decades of mining prepared the review, stated that the WA approvals industry and infrastructure-led development. system took ‘…too long…’, was ‘…too costly It is possible that many of these Acts will be [and] bureaucratic…’ and was ‘...not always superseded over the next twenty years or so by representing the objectives of the elected Native Title determinations and negotiated government…’ (WA Government Department of heritage agreements embedded in ILUAs between Mines and Petroleum 2009:i). Moreover, he went Aboriginal groups and developers. This has led to on to say this lamentable situation had come by much hand wringing on the part of archaeologists virtue of the ‘intrusive’ Federal Government and and other heritage professionals. As Zimmerman their ‘acceptance of United Nations (1995:65) powerfully argued, archaeologists environmental and similar Treaties’ as well as the should not be the self-appointed ‘stewards of the Environmental Protection and Biodiversity past’, particularly in those parts of the world Conservation Act 1999, Native Title legislation, colonised by European nations after around 1500 and ‘Aboriginal heritage issues’. Certainly, Jones AD. We suggest, however, that this does not makes no mention of empowering Native Title mean that archaeologists should not engage with holders. Aboriginal stakeholders to argue for conservation In any case, traditional Aboriginal cultural of archaeological sites and/or for systematic site heritage legislation remains relevant in areas recording of Aboriginal archaeological sites where Native Title is not present. Aboriginal because they feel that, in doing so, they are heritage sites located on land in which Native continuing the colonising process. Other Title has been extinguished (i.e. on freehold land stakeholders generally have no hesitation in or where Native Title was relinquished through forcefully arguing development agendas. We negotiation) may not necessarily be protected believe that if archaeologists do not try and keep under any heritage agreements (Edelman et al. a seat at the table, while acknowledging that their 2010:6). perspectives are entirely secondary to those of Aboriginal stakeholders, a potentially important Conclusion voice in arguing for conserving and/or Clearly, Aboriginal stakeholders should be the systematically recording Aboriginal primary agents in determining what constitutes archaeological heritage will be lost. Aboriginal heritage. They should also have a say in how sites are managed and under what
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Acknowledgements Edelman D, Hall T, Hayes L, Byrne J, & Cowan C 2010, ‘Commonwealth, state and territory heritage regimes: summary We presented a paper on this topic at the annual of provisions for Aboriginal consultation’. A report for the New South Wales Aboriginal Land Council. Research Section of the conference for the Australian Archaeological National Native Title Tribunal, Canberra. Available from: Association (AAA) in Cairns in 2014 and then
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Western Australia Government Department of the Premier and
Act Definitions of terms relating to Aboriginal Places
Heritage Act 2004 (ACT) ‘Aboriginal place means a place associated with Aboriginal people because of Aboriginal tradition…Aboriginal tradition means the customs, rituals, institutions, beliefs or general way of life of Aboriginal people.’ (Part 2, Section 8) National Parks and The Act defines Aboriginal land as ‘certain lands reserved under this Act [that] are of cultural significance to Wildlife Act 1974 (NSW) Aboriginal persons. Land is of cultural significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons.’ (Part 4A, Section 71D)
Heritage Act 2011 (NT) ‘An Aboriginal or Macassan archaeological place is a place that: (a) relates to the past human occupation of the Territory by Aboriginal or Macassan people; and (b) has been modified by the activity of those people.’ (Part 1.2, Section 6(2)) Aboriginal Sacred Sites A ‘sacred site’ has the same meaning in this Act as it did in the Land Rights Act 1976: ‘…a site that is sacred to Act 1989 (NT) Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.’ (Part 6, Section 69) Aboriginal Cultural ‘Aboriginal cultural heritage is anything that is — (a) a significant Aboriginal area in Queensland (or Torres Strait Heritage Act 2003 / Islands); (b) a significant Aboriginal object; or (c) evidence, of archaeological or historic significance, of Torres Strait Islander Aboriginal occupation of an area of Queensland (or Torres Strait Islands).’ (Part 1, Section 8) Cultural Heritage Act 2003 (Qld) Aboriginal Heritage Act ‘Aboriginal site means an area of land— (a) that is of significance according to Aboriginal tradition; or (b) that is 1988 (SA) of significance to Aboriginal archaeology, anthropology or history, and includes an area or an area of a class declared by regulation to be an Aboriginal site but does not include an area or an area of a class excluded by regulation from the ambit of this definition.' (Part 1, Section 3) Aboriginal Relics Act 1975 ‘…a relic is—(a) any artefact, painting, carving, engraving, arrangement of stones, midden, or other object made (Tas.) or created by any of the original inhabitants of Australia or the descendants of any such inhabitants; (b) any object, site, or place that bears signs of the activities of any such original inhabitants or their descendants; or (c) the remains of the body of such an original inhabitant or of a descendant of such an inhabitant who died before the year 1876 that are not interred in – (i) any land that is or has been held, set aside, reserved, or used for the purposes of a burial ground or cemetery pursuant to any Act, deed, or other instrument; or (ii) a marked grave in any other land.’ (Part 1, Section 2(3)) Aboriginal Heritage Act ‘…an Aboriginal place is an area in Victoria or the coastal waters of Victoria that is of cultural heritage 2006 (Vic.) significance to the Aboriginal people of Victoria…”area” includes any one of the following—(a) an area of land; (b) an expanse of water; (c) a natural feature, formation or landscape; (d) an archaeological site, feature or deposit; (e) the area immediately surrounding any thing referred to in paragraphs (c) and (d), to the extent that it cannot be separated from the thing without diminishing or destroying the cultural heritage significance attached to the thing by Aboriginal people; (f) land set aside for the purpose of enabling Aboriginal human remains to be re-interred or otherwise deposited on a permanent basis; (g) a building or structure.’ (Part 1, Section 5) Aboriginal Heritage Act ‘This Act applies to—(a) any place of importance and significance where persons of Aboriginal descent have, or 1972 (WA) appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present; (b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent; (c) any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State; (d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.’ (Part 2, Section 5) (Further definitions of importance and significance are found in Part 5, Section 39) Table 3: Definition of Aboriginal places in current and relevant state legislative Acts
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Aboriginal Heritage Law Reform in NSW: ‘no future’? STEVE BROWN
Steve Brown (University of Sydney, [email protected])
In its simplest form, a law or policy reform process requires a problem, an agreed position (or ‘solution’), and political will. The New South Wales (NSW) Aboriginal Heritage Law Reform Process lacks both an agreed position and political will, despite laudable intentions by government, Aboriginal groups, archaeologists and heritage practitioners. After seven years, there is no agreed model for stand-alone Aboriginal cultural heritage legislation and, using the issue of ‘who speaks for Country’ as a stalling mechanism, there is no ‘reform’. In this paper, I background the rocky road to no reform and touch on three of many stumbling blocks: a failure to conceptualise the nature of NSW’s Aboriginal heritage, poorly framed and implemented consultation processes, and a pervasive attitude of anti-intellectualism. Until these matters are thoughtfully and effectively addressed, the road to reform will be long and winding, destination unknown.
Introduction More than seven years on (September 2016) there has been no delivery on the February 2010 In 2010, the NSW Constitution was amended to commitment. Politics has and continues to play a acknowledge and honour Aboriginal people as role in this failure. For example, on 4 September the state’s first people and nations. In the same 2014 the Hon. Mark Speakman, Minister for the year, the NSW Labor Government committed to Environment, Minister for Heritage, and the development of stand-alone Aboriginal Assistant Minister for Planning, raised the issue cultural heritage legislation. This commitment, of ‘who speaks for Country’ as a reason for the supported by both major parties in the then NSW delay in progressing the Aboriginal law reform State Parliament, was a response to calls from process. In response to questioning, Minister Aboriginal people to remove Aboriginal heritage Speakman stated: management provisions from the NSW National Parks and Wildlife Act 1974. These provisions, it In September 2013 the Government released was argued, equated Aboriginal people with the a proposed model for stand-alone Aboriginal plants and animals of NSW, echoing colonial cultural heritage legislation. We subsequently had extensive consultation. constructions of Aboriginal people as part of the Yes, there has been a delay, but at the end of faunal assemblage of the State (NSW Aboriginal the day it is more important to get things Land Council 2010: 5). Thus, in 2010, Aboriginal right than to cut corners. This area is communities and the Parliament were of the same extremely sensitive. There are difficult opinion: separate Aboriginal heritage legislation issues. One difficult issue is who speaks for was a necessary and powerful anti-colonial country. This is answering your question symbol and empowering action. because I am explaining why it has taken this time. One issue we will have to grapple with is who speaks for country. We
Article History: Received 11/05/2016, Accepted 15/09/2016, Published 01/11/2016 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 20-28
exhibited a model in 2013, where we tried to stand-alone Aboriginal heritage legislation for have traditional owners do that. As I NSW. While there is a need for both getting it understand it, the New South Wales right (to reference Minister Speakman) and Aboriginal Land Council, among others, getting it done, the former is not a credible reason preferred a model where the land councils for failing to achieve the latter. are the interlocutors, if you like. That is a difficult issue to resolve. It is a sensitive A background to Aboriginal heritage issue and we want to take the time to do it legislation in NSW properly. At the end of the day, we want to get the right answer rather than cut corners Although there is a history of calls in NSW for and end up in the wrong spot because we are legislation to preserve and protect ‘Aboriginal more interested in expediency than a good sites’ dating back to 1889, it was not until 80 outcome.2 years later that legal protection commenced Equally, and beyond stalling and evasion within (Table 1). The initial legislation, the NSW the arena of State politics, there have been National Parks and Wildlife (Amendment) Act shortcomings within the public-sector 1969, incorporated provisions for the blanket administration of the NSW legislative reform protection of all Aboriginal ‘relics’ (objects and process. That is, the NSW Office of Environment sites). The Amendment was driven by a desire to and Heritage (OEH), responsible for overseeing halt the private collecting of Aboriginal ‘relics’, the reform process, has, in my view, shown a lack in particular stone artefacts and human remains of leadership and capacity to advocate for from surface and buried contexts. It is notable for legislative change. In this paper, I draw on public its failure to make mention of the living information and personal knowledge, experience, Aboriginal people of NSW and their culture. The and perceptions of the legislative reform process. framing was of course typical of its time and In the period 2010 to 2013, I was employed as a similar contemporary ‘relics’ legislation, but not Cultural Heritage Researcher within the OEH, congruent with present day views on the during which time I periodically undertook continuity between Aboriginal heritage and the research, developed public information and State’s living Aboriginal culture (Byrne 2013). participated in consultation processes as part of Although Aboriginal heritage management after the NSW Aboriginal heritage law reform process. 1969 initially focused on what heritage My critiques centre on failures to conceptualise practitioners would now frame as archaeological the nature of NSW’s Aboriginal material or scientific values of Aboriginal heritage places, heritage, the inadequate conception and things soon changed. In particular, the National implementation of face-to-face consultation Parks and Wildlife Service’s (NPWS) Sites of workshops, and the anti-intellectualism of the Significance Survey (1973-83), instigated by reform process. While my arguments might be Sharon Sullivan and led by anthropologist dismissed as ‘embittered ex-employee Howard Creamer and Aboriginal syndrome’, my concern (in Latourian terms) is to researcher/activist Ray Kelly, documented highlight problems within government that have aspects of the ‘living heritage’ of Aboriginal served to complicate and destabilise the genuine people in NSW (Kijas 2005). The survey and broadly agreed commitment in 2010 for recorded deep time storied places (including ‘sacred sites’) as well as post-contact places such 2 General Purpose Standing Committee No. 5. 4 September 2014. as missions, cemeteries, and fringe camps. As a Examination of proposed expenditure for the portfolio areas – The Environment, Heritage. Available at: consequence of this work, the revised NSW https://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/ National Parks and Wildlife Act 1974 made 2507420d743bce8aca257eb90002994f/$FILE/150904%20UNCOR RECTED%20-%20Environment%20Heritage%20(Speakman).pdf provision for the gazettal of ‘Aboriginal Places’: [1 December 2015] that is, ‘places of special significance with respect
21 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 20-28 to Aboriginal culture’. This provision was the that aimed to improve quality of life for first recognition of the idea of intangible heritage, Aboriginal people and their communities. whether Indigenous or non-Indigenous, in NSW From the mid-1970s, there has been a long and heritage legislation. complex history of calls for reform of the NSW Despite the work of the Sites of Significance Aboriginal heritage legislation (NSW Aboriginal Survey, the 1970s and 1980s in NSW are notable Land Council 2010; OEH 2010). The most for the privileged position given to archaeology notable attempts relate to the work of the NSW and regulatory regimes that relied heavily on Select Committee of the Legislative Assembly archaeological expertise. During this period, upon Aborigines (the Keane Committee; 1978- Australian legislatures for the most part evolved 1981), established by the Wran Labor quite robust and efficient regulatory systems that Government in 1978; and the NSW Aboriginal were archaeologically based – including Cultural Heritage Working Group (1993-1996) development impact assessment and permitting established by the Fahey Liberal Government. systems. The period is also notable for the Few of the foremost recommendations of these formulation, by Australia ICOMOS, of the first committees were supported or implemented. iterations of the Burra Charter, notable for its inclusion of the phrase ‘places of cultural After 2010: the promise of ‘stand-alone’ significance’ and adoption of the concept of Aboriginal heritage legislation for NSW ‘social value’. During the 1980s, the NSW In February 2010, the NSW Labor Government Aboriginal Land Rights Act 1983 led to the committed to the development of stand-alone establishment of a network of Local Aboriginal legislation for Aboriginal cultural heritage Land Councils (or LALCs) across NSW. The (ACH), promising delivery within a two-year legislation provided for LALCs to protect and period. To summarise events from 2010, three promote awareness of Aboriginal culture and chronological phases can be identified. heritage. Today the LALC network comprises 120 councils divided into nine regions. Phase 1: Beginnings The 1990s was the decade when Native Title was In October 2011, the NSW Liberal Government recognised by Australia’s High Court, Aboriginal established an Aboriginal Culture and Heritage co-management of national parks was enabled, Reform Working Party. It comprised ‘a group of and the Australian Government established its experts who will advise the Government on Indigenous Protected Areas program. It was also options for stand-alone legislation to manage and during this period that the NSW Government, protect Aboriginal culture and heritage in NSW’ whilst retaining a largely archaeological (OEH 2011: Minister’s foreword; OEH 2012c: definition of Aboriginal heritage in legislation, 31). The working party initially proposed the began to adopt a broader view of Aboriginal following reform timetable: (1) initial community heritage in its policies and practice, as well as and stakeholder engagement and consultation using language that recognised and respected the (three months); (2) collation of feedback and importance of cultural heritage to Aboriginal development of an options paper (three months); communities. During the 2000s, Aboriginal (3) second community and stakeholder heritage gained further prominence within the engagement and consultation on options paper NSW Government as Aboriginal people (three months); and (4) Working Party to provide increasingly occupied senior management roles report and recommendations to Minister and Aboriginal heritage and culture was (September 2012). integrated into a State-wide, government-led The first stage engagement and consultation program titled Two Ways Together (2003-2013) process (November-December 2011) comprised
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26 regional Aboriginal community workshops Phase 3: A model for new legislation (attended by 340 Aboriginal people) and five proposed roundtables for industry, government and In October 2013, in response to the discussion environmental and heritage interest groups (120 paper, as well as previous public feedback, the attendees) (OEH 2012c). Consultation focused NSW Government issued a proposed model for on: defining Aboriginal culture and heritage; stand-alone ACH legislation (OEH 2013b). The managing Aboriginal culture and heritage; model proposed an administrative structure based ownership of Aboriginal culture and heritage; on the existing LALC network as a basis for local speaking for Country; land-use planning and ACH decision making, including requirements development processes; and natural resource for LALCs to prepare and implement values- management processes. In advance of the based ‘Community Land and Business Plans’ that consultation process, a comprehensive were to incorporate maps identifying areas of background research report (Brown et al. 2011) high, low and no ACH value. was prepared though, as discussed below, it was The model was the subject of a third consultation never made publicly available. process (November 2013 to March 2014). Phase 2: A revised law reform process Nineteen public workshop sessions were held In late 2011, as the initial consultation phase was throughout NSW and additional feedback from occurring, the NSW Liberal Government this process comprised 147 written submissions 3 announced a revised law reform process. The first and 67 completed questionnaires. In general, Reform Working Party was disbanded and a there was disagreement concerning the LALC second Working Party was constituted in May framework model, opposition to the preparation 2012 (Laing & Stanford 2015: 89; OEH 2013a: of significance-based mapping products, and a 1). In June/July 2012, 11 regional feedback concern that mandatory timeframes were forums took place to communicate the findings of unnecessarily short. Since the completion of that the first stage consultation process and, in consultation process there have been no public response to Aboriginal community requests, to announcements or information concerning ‘next deliver information on Aboriginal heritage steps’ (Laing & Stanford 2015: 89). Except of legislation (OEH 2012a, b). course for Minister Speakman’s furphy to ‘get things right’.4 The second Working Party developed and provided to the NSW Government a report and A critique: concept, consultation, and recommendations at the end of 2012. The report anti-intellectualism was published as a discussion paper in September In this section, I touch on three critical issues in 2013 (OEH 2013a). In its published discussion the ACH law reform process. There are of course paper, the Working Party made 23 many other issues in the complex arena of recommendations that sought ‘a fair and equitable Aboriginal heritage management, but I choose balanced model for all stakeholders involved in these ones because I am able to draw on the process’. There were six key knowledge and personal experience, as well as recommendations: new stand-alone ACH published literature, in discussing them. legislation; a new administrative structure; processes to consider Aboriginal cultural heritage early in the planning processes; local decisions by local people; streamlined conservation and 3 Available at: regulation processes; and funding for
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Conceptualising the Aboriginal heritage shown how stone tools were widely ascribed both of NSW intangible and functional meanings by Aboriginal When the NSW Parliament passed the National people at the time of European settlement. Parks and Wildlife (Amendment) Act 1969 and Increasingly over the nineteenth and early to mid- thereby afforded ‘blanket protection’ to all twentieth centuries, Aboriginal cultural Aboriginal material remains across NSW, the knowledge concerning stone artefacts lessened legislators were likely unaware of how many and changed as access to stone sources and the Aboriginal ‘sites’ actually existed in the state use of stone artefacts diminished. By the 1970s, (Brown et al. 2011: 12; Smith 2000: 114; K when the field of commercial or developer-driven Sullivan 1986). The number of ‘sites’ currently archaeology was expanding in south-east registered on the NSW Aboriginal Heritage Australia, Aboriginal people engaged in the field Information Management System exceeds retained little (though still some) ‘traditional’ 60,000, a figure that would have seemed information on the use and meanings of stone unimaginable to parliamentarians and artefacts. This placed Aboriginal people in the archaeologists in the 1960s. uncomfortable position of having the technical aspects of stone artefacts, their heritage, The notion of ‘sites’ has long been pervasive in ‘explained’ to them by non-Indigenous archaeological theory and practice and, from the archaeologists. Over the following decades this 1960s, sites as discrete assemblages of material situation both continued and changed markedly. traces of past human presence entered into Initially Aboriginal people acquired the technical Australian Aboriginal heritage legislation. By language of archaeology to describe and discuss contrast, the Aboriginal English concept of stone artefacts (i.e., they learned to talk-the-talk) ‘Country’ has become increasingly recognised for and thus the ability to participate in the dominant its whole-of-landscape meaning. For discourse of NSW ACH. Equally, Aboriginal contemporary Australian Aboriginal people, the connection to stone objects took on contemporary concept of ‘caring for Country’ is a complex social meanings (i.e., artefacts became significant notion related both to personal and group as material proof and affective markers of the belonging and to maintaining and looking after presence of ancestors) and spiritual ties (i.e., able the ecological and spiritual wellbeing of the land to transmit ‘special feelings’ connected with and of oneself. Caring for Country in Aboriginal familial ancestors and ‘power’ associated with cosmology is a phrase encompassing all parts of find locales). (see Byrne 2013; Harrison 2004: the landscape and seascape, as well as people and 198-200) non-human species. Within the meaning of Country, the idea of ‘sites’, where it exists, is but In my experience, these new and powerful social a small part of a bigger cosmological whole. The and spiritual meanings ascribed and experienced point I am making here is that ACH is Country by Aboriginal people are rarely recognised in for most Aboriginal people and communities. It is heritage practice (e.g., OEH 2013c; Queensland an Aboriginal perspective on heritage value Museum 2011), and were never acknowledged in neither encompassed by NSW Aboriginal the NSW ACH law reform process. That is, heritage legislation nor adequately incorporated material traces of past Aboriginal presence, and into NSW’s heritage management system. especially stone artefacts, have continued to be viewed in the legislative reform process as The history of valuing Indigenous stone artefacts ‘archaeological’ and thus distinct and separate in provides a useful illustration of changing ideas of their materiality (not only values) from heritage and the dynamism of contemporary Aboriginal ownership (and valuing). By failing to Aboriginal heritage. Ethnographic and ethno- conceptualise the nature of NSW’s Aboriginal archaeological research (e.g. McBryde 1978) has heritage as Country enlivened by affective things,
24 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 20-28 the ACH law reform process will continue to be was the ACH law reform process articulated as challenged in gaining Aboriginal community ‘negotiation’, and consequently no authority was support. conferred to, or real power shared with, Aboriginal community members being consulted. Design and implementation of In this respect the process was top-down, consultation processes controlled by the Minister, senior government The three phases of community participation bureaucrats and, to an unknown extent, the applied during the NSW ACH law reform process members of the Aboriginal Culture and Heritage included a series of face-to-face ‘consultation’ Reform Working Party. The process stands in workshops, meetings and forums. These events, contrast to notions of genuine engagement, as enacted as part of the ACH law reform process, defined by Janet Hunt, were well intended (and moderately well Engagement requires a relationship built on attended) but, from my experience, poorly trust and integrity: it is a sustained conceived, executed, documented and synthesised relationship between groups of people (e.g. evident in OEH 2012c). My experience is working towards shared goals; on the also reflected in similar concerns expressed by spectrum of engagement, a high level of the NSW Aboriginal Land Council (2014: 11-12). participation works better than lower levels In large part, I suggest, this is because the (such as consultation) where problems are consultation process and face-to-face events were complex. (Hunt 2013: 1) only ever framed as ‘consultation’. Finally, the level of consultation applied in the Consultation in Sherry Arnstein’s ‘ladder of law reform process, and anticipated by the NSW citizen participation’ is a form of tokenism Government proposed model, has been (Arnstein 1969; Johnston & Buckley 2001). For questioned with regard to compliance with Arnstein, Article 18 of The United Nations Declaration on the Rights of Indigenous People, to which Inviting citizens' opinions, like informing Australia is a signatory (Hunt 2014; NSW them, can be a legitimate step toward their full participation. But if consulting them is Aboriginal Land Council 2014). not combined with other modes of The role of research participation, this rung of the ladder is still a sham since it offers no assurance that citizen As part of the governmental approach to the ACH concerns and ideas will be taken into law reform process, a 250-page research paper account. The most frequent methods used for (Brown et al. 2011) was produced that described consulting people are attitude surveys, and compared the situation of Indigenous heritage neighborhood meetings, and public hearings. legislation and management in different When powerholders restrict the input of Australian and overseas jurisdictions (New citizens' ideas solely to this level, Zealand and Canada). The paper’s purpose was to participation remains just a window-dressing serve as a resource document for the Aboriginal ritual. (Arnstein 1969:219) Culture and Heritage Reform Working Party as Within its own document on Working with well as for community members seeking to gain a Aboriginal People and Communities, the NSW comprehensive historical background to and key Government (2009: 31) makes a distinction trends in Aboriginal heritage management in between a consultation process (‘used to seek Australia. The paper was compiled over a three- information, advice or an opinion, permission or month period by five government-based approval for a proposed action’) and a negotiation researchers in advance of the 2011 community process (‘used to confer with others in order to and stakeholder engagement and consultation reach a compromise or agreement’). At no stage process. Various summaries of the report were
25 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 20-28 subsequently prepared (OEH 2012a, b), though archaeological value. And therein lies a position the report was never made public. The exact that would perpetuate a situation that has existed reasons are unclear, though at the time there was in NSW Aboriginal heritage legislation since considerable discussion concerning: (1) the 1974; that is, a notion of sharing authority report’s acknowledgement of the community- between archaeological and Aboriginal expertise. based approach to Indigenous heritage evident in In my view, it is not enough to bring Aboriginal ‘second-wave’ Queensland and Victorian community values into new Aboriginal heritage legislation as well as approaches adopted in New legislation. Rather, true reform can only be Zealand and Canada, and (2) recognition of the achieved when the rhetoric of custodianship and need to take account of the principles of Native ownership is made real and Aboriginal people Title (again as in the Queensland and Victorian recognised as the relevant experts and most legislation). qualified to manage or curate objects and Country. Such a situation is not incompatible While the reasons for withholding the resource with archaeological investigation. For example, document are uncertain, my experience then and work by Shelley Greer (2010) shows that feelings now are of an over-riding anti- archaeologists open to the more-than-secular intellectualism in the administration of the ACH meaning of shell middens, and landscape and law reform process. There seemed to be an Country more generally, can work within a obsessive desire to ‘keep it simple stupid’ (the framework in which local values and archaeology KISS principle) and a seemingly perverse are ‘interactive’. Following this example, power characterisation of all community members as is gained in undertaking archaeological work unable or unwilling to engage in informed debate. when Aboriginal communities are empowered. In addition, many of the materials published on the NSW Government webpages adopt a generic Perhaps it might be best to finish with reference rhetoric of ‘real protection’, ‘broader approach’, to the Sex Pistols, who famously screamed from ‘stronger voice for Aboriginal people’, ‘better vinyl that the English monarchy has ‘no future’. integration’, ‘consistency of process’, ‘best Unless things change in terms of political will practice’, ‘Government efficiency’, etc, none of and an agreed legislative approach, nor it seems which is underpinned by evidence-based critical does the seven-year long NSW Aboriginal discussion. The effect of this discourse has been heritage law reform process. to obscure and complicate effective community engagement with practical and workable Acknowledgements arrangements concerning new Aboriginal heritage I thank the editors of this volume for inviting me legislation. I argue that without well-researched to present at the 2015 Australian Archaeological materials that judiciously analyse approaches and Association workshop on cultural heritage lessons from other jurisdictions, informed management and the law and to develop the discussion and debate is smothered when presentation into a paper. I also recognise and attempting not to rock the political boat. express my appreciation to colleagues who have ‘No future’? shaped and influenced my thinking about the NSW law reform process, including Denis Byrne, At various points in the Aboriginal law reform Caroline Ford, Emma Dortins and Alex Roberts, process, commentary has circulated arguing that though none have read or contributed directly to the archaeological regulatory system is functional drafts of this paper. I thank Caroline Bird and Jim and consequently should be fundamentally Rhoads for review comments on a draft of the retained. In this view, reform is about bolstering paper, which have considerably improved the Aboriginal participation and ensuring recognition final version. Any errors of fact or vagaries of of cultural values alongside ‘scientific’ or meaning remain my own.
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References 0submission%20Aboriginal%20Culture%20and%20Heritage% 20Reform%20FINAL%20.pdf>. [20 September 2016]. Arnstein SR 1969, ‘A ladder of citizen participation’ Journal of the NSW Government 2009, Working with Aboriginal people and American Planning Association 35(4): 216-24. communities: a practice resource. Available from: Brown S, D Byrne, E Dortins, C Ford & A Roberts 2011, 27 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 20-28 1889 Robert Etheridge (1847-1920), palaeontologist and ethnologist at The Australian Museum (Sydney), calls for preservation of Aboriginal sites in NSW. No reference is made to contemporary Aboriginal people or of any association between them and these remains. 1913 Crown Lands Consolidation Act of 1913 provides for the creation of special reserves for Aboriginal art sites in NSW. Few were created. 1939 Fred McCarthy (The Australian Museum) submits draft Aboriginal ‘relics’ legislation to NSW Parliament. No action taken. 1960s The focus of Aboriginal heritage management is archaeological research and documentation of pre-contact archaeological sites. 1967 NSW National Parks and Wildlife Act 1967 enacted. No Aboriginal heritage provisions. 1968 Conference on Prehistoric Monuments and Antiquities in Canberra, which views Aboriginal cultural heritage as mainly the province of archaeology. 1969 National Parks and Wildlife (Amendment) Act 1969. The beginning of legal protection for Aboriginal ‘relics and sites’ in NSW. 1970 Establishment of an Aboriginal Sites Unit within NPWS, which immediately begins building an Aboriginal Sites Register. 1972 Development-related archaeological surveys begin with the Moomba to Sydney natural gas pipeline project. 1973 Commencement of the NPWS Sites of Significance Survey (1973-1983) by Anthropologist Howard Creamer and a team of Aboriginal researchers led by Ray Kelly. 1974 NSW National Parks and Wildlife Act 1974. Provision for gazettal of Aboriginal Places: places of ‘special significance with respect to Aboriginal culture’, including where no ‘relics’ are present. 1976 NPWS requires archaeologists to consult Aboriginal communities in regard to ‘consent to destroy’ applications. (S Sullivan 1996: 4) 1979 Australia ICOMOS Burra Charter adopted. NSW Environmental Planning and Assessment Act (EPA) formalised the requirement that development proponents carry out investigation to identify Aboriginal sites subject to impacts. 1983 NSW Aboriginal Land Rights Act 1983. Leads to the establishment of a network of Local Aboriginal Land Councils throughout NSW. 1992 Mabo decision. The High Court’s Mabo decision leads to the recognition of Native Title and a legal/administrative process for claiming it. 1995 The Australian and NSW governments begin a process of legislative reform to enable Aboriginal co-management of national parks. 2001 National Parks and Wildlife Amendment Act 2001. Includes the redefining of Aboriginal relics as Aboriginal objects. 2003 NSW Two Ways Together program. A 10-year program to improve the lives of Aboriginal people and their communities in the areas of health, housing, education, culture and heritage, justice, economic development and families and young people. 2006 Aboriginal Natural Resources Agreement Kit. Acknowledges that Aboriginal peoples’ spirituality, culture, and identity are intertwined with the ‘natural’ landscape, and that Traditional Owners have responsibilities to care for the landscape. 2009 UN Declaration on the Rights of Indigenous People endorsed by the Australian government. 2010 Amendments to the NSW National Parks and Wildlife Act 1974, which expand protection of ‘Aboriginal objects’ and declared Aboriginal Places by broadening the definition of ‘harm’ under the Act and increase penalties for offences. Amendment of the NSW Constitution to acknowledge and honour Aboriginal people as the state’s first people and nations. NSW Labor government commits to the development of stand-alone legislation for Aboriginal cultural heritage. Table 1. Aboriginal heritage in NSW: a timeline (1889-2010) 28 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 Native Title and the Aboriginal Heritage Act (WA): an awkward relationship ROBIN STEVENS Robin Stevens (Stevens Heritage Services, [email protected]) This paper discusses the awkward junction between Native Title and the Aboriginal Heritage Act 1972 (WA) concerning heritage protection and management. It is largely based on my own experience working as a heritage consultant in Western Australia over the past 20+ years, including several years working in a Native Title representative body. In that time a heritage industry has grown in relation to two processes; the expansion of the minerals industry and the greater interaction and agreement making with indigenous people through native title processes. Industry has increasingly—if initially reluctantly—come on board in recognising the legitimacy of asserted and determined Native Title rights and interests. Today, Native Title claims, some of which have been determined, exist over almost the whole of Western Australia. Hundreds, if not thousands, of heritage agreements and Indigenous Land Use Agreements (ILUAs) have been signed between proponents and Aboriginal groups. Yet state heritage legislation in Western Australia has struggled to accommodate these asserted or legally determined rights regarding the management of Indigenous heritage places. In my experience, both as a heritage consultant and in managing heritage for a Native Title representative body, the overwhelming majority of Aboriginal heritage surveys in Western Australia are conducted as a result of a Future Acts process, a process adjoined to the Native Title Act 1993. But WA’s Aboriginal Heritage Act 1972 not only lingers in the 1970s administrative mind-set from which it was born, but has also in recent years undergone reviews with the specific aim to turn administrative processes for heritage management into a conveyor- belt system of approvals for commercial interests. For many in Western Australia who have a genuine interest in modern heritage management processes, the issues of ownership and control of Aboriginal heritage, rights and obligations and meaningful consultation have become lost in a kind of legislative fog and administrative conjunctivitis. Heritage: the AHA and Native Title Government’s Department of Native Welfare was replaced with the Aboriginal Affairs Planning Historically, the AHA was something of a Authority. The AHA was at the tail end of a list milestone when it was enacted in late 1972, of acts or government programs going back offering a framework of legislative protection to almost 100 years that purported to protect the Aboriginal sites and places at a time in which interests of Aboriginal Australians. Rather, these large-scale industrial development was under way Acts and programs permitted a high degree of in the north of the state (Chaloner 2004). This control over their lives and normalised an acute was a period of heightened political struggle for denial of rights afforded to other Australians Indigenous civil rights and land rights, following (Chesterman and Galligan 1997: 3; see also only five years after the 1967 Constitutional Chaloner 2004: 41). The AHA was formulated in Referendum. In the same year, the State a period of changing ideas, reflecting both old Article History: Received 10/07/2016, Accepted 20/09/2016, Published 13/12/2016 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 and new ideas in Aboriginal affairs. It is full of prospects for Aboriginal Australians and their poorly defined value-laden terminology – the greater involvement in the wider Australian source of much speculation within the DAA as to society. its real intent. While there are clauses that show a In general, the management of heritage through new approach to involving Aboriginal the AHA is focussed on sites, and was initially perspectives in heritage management, much of it implemented in such a way as to develop an contains older ideas centred on ‘relics’ inventory of sites, as prescribed in s38. There are preservation and scientific evaluation. That is, the clauses in the AHA that could accommodate AHA contains the residues of the colonial state Native Title rights, as they pertain to heritage, seeking to look after the heritage of Aboriginal more readily. Section 7.1(a) states the Act is not Western Australians by taking control of it on the intended to restrict the rights of Aboriginal one hand, yet administering it in a manner that is people to use and enjoy places in accordance with more acknowledging of Aboriginal culture on the tradition. That is, protection is not intended to other. It might be described as a form of post- take complete control over their heritage. Under colonial paternalism (see Ritter 2003). sections 8 and 9 there are also provisions for the Two decades after the enactment of the AHA in Minister to confer authority to Indigenous groups Western Australia, the Federal Court overturned to manage places and objects. However, such the legal fiction of Terra Nullius and began a authority can also be withdrawn. process of recognising systems of pre-existing Native Title, on the other hand, lends itself to a rights among Aboriginal peoples through broader understanding of heritage linked to Australian common law. Native Title is the landscape and the inheritance of cultural practice. common law recognition of pre-existing rights Heritage sites, to borrow an expression by George and interests in land and waters held by Stow (1905:397), are the ‘ancient title-deeds’ of Indigenous peoples prior to British settlement and land occupancy. Heritage in this context is more which have continued through to the present. commonly understood in terms of relationships to Over the past two decades in many parts of places and long-held cultural practices. Australia certain Native Title rights and interests Paraphrasing anthropologist Howard Morphy, in land and waters by particular claimant groups Justice Toohey states, have been recognised in law by the Federal Court of Australia. These often include rights that can The protection of sites … is not as simple as be understood within a broader perspective of putting up a fence around certain trees. It is the whole notion of controlling if you like a Indigenous cultural heritage. The right to ‘visit, totemic landscape, which does not consist of a maintain and protect from physical harm, areas, single tree in a particular place … but is places and sites of importance in the integrated within the whole process of that Determination Area’ is common, if not universal, environment (Toohey 1982: 241). to Native Title claims throughout Australia Part of the problem in modern heritage (McGrath 2016:54; Tan 2016:40). Little by little, management is the way in which heritage is Native Title processes have given some impetus conceived (see Tan 2016 for a contemporary to groups of Aboriginal people in wresting back legal perspective). To start with a broad control over some aspects of their cultural perspective: heritage is a term or concept widely heritage. While Native Title processes are used in public domains. Most people at some arduous, they have provided tangible outcomes time talk of their own heritage. Often it is for many Aboriginal Australians with respect to intertwined with discussions of ancestry, history, customary rights, including the management of traditions and cultural identity. If, for a their heritage sites, places and objects. Native hypothetical example, we were to ask a Scottish title has also stimulated discourses about future 30 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 person on the streets of Inverness, ‘can you On the other hand, cultural heritage management describe your heritage?’, they would likely give a is a more constrictive form of heritage, centred on description of their family ancestry, and also what land management practices. It tends to be it means to be Scottish. They might refer to a few pragmatic in nature. It could feasibly include castle ruins and megalithic tombs, but their recording songs and knowledge of bush narrative might encompass everything from medicines and so forth, but in practice, it is haggis, tartan and bagpipes, iconic Scottish mostly concerned with in situ heritage places and poems and songs, significant battles, heroes and objects (that is, place-based heritage). In Western legends, the Loch Ness Monster, the highland Australia the focus has largely been on sites. games, language – Scottish Gaelic and Scottish There are different ways to define sites, but in English - through to their inventors, philosophers, cultural heritage management I would suggest actors and comedians, the stories they tell their that a site is a defined location within a children, and their thoughts on the Glasgow landscape 5 where heritage management is Celtic and Rangers football teams. Throughout, required. Practitioners use various criteria to parts of the Scottish landscape might be invoked create site boundaries, which did not previously like a reservoir of memories. Whether history and exist, and the process of creating those site myth collide is neither here nor there; it is the boundaries is solely for the purpose of managing narratives that provide intrinsic notions of what it the heritage place. Even allowing for the fact that is to be Scottish. cultural heritage management is not intended to All over the world, the story is similar (see for be an all-embracing approach to all forms of example Pellow 1992:188; Chivallon 1995; Nora heritage, but rather focussed on sites and objects 1996:1; Nagar 1997; Mayne and Murray 2001 (e.g. artefacts, petroglyphs, cemeteries, and Lloyd 2012). Heritage for most people is not waterholes with a dwelling serpent snake), there confined to an assemblage of things and places, are problems with such an approach. Byrne but incorporates a wide suite of relationships (2003:188) discusses the ‘hegemony of the site within a landscape and with a range of cultural concept’ versus the total cultural landscape. He practices and narratives (The Burra Charter, notes that ‘sites’ are more easily defined and Australia ICOMOS; Ahmad 2013:16; Nagaoka managed, but often at the cost of segmenting 2016). To a significant degree, heritage in its heritage into disconnected fragments. many manifestations is the foundation of cultural Dreaming tracks provide a good example. They identity (Smith 1999:201-202). Likewise, the extend across tens or even hundreds of kilometres heritage of respective Aboriginal peoples in and are clearly important aspects of Aboriginal Western Australia is more than a collection of heritage anchored in country. Yet they could not sites and isolated artefacts. It embraces an sensibly be defined as ‘sites’. They are, rather, anthropogenic landscape, with myths from the important pathways in an interconnected Dreaming embodied in hills and waterways (See landscape. There should not be any doubt that Lewis and Scambary 2016: 225-226). It is the they require appropriate management. In most transmission of cultural knowledge in songs and cases it would seem advisable to let Aboriginal language and art through ritual. It involves custodians tend to any cultural matters and renew complex relationships that groups have with their and care for them. land and waters, as well as with everything upon If we look at successfully determined claims that land (Morphy 1995:230-234, Myers across Australia, one of the most common rights 1996:127-158;). In short, it is what one generation hands down to the next. 5 To be clear, some landscapes may also require heritage management, but a site is a defined place within a landscape. 31 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 recognised in Federal Court determinations is the 80,000 future act notices had been lodged in right of the respective Indigenous groups to Western Australia from 1993, and of the 3,362 protect and manage sites, places and objects of lodged in 2014 alone almost 80% were issued by significance to them and not to someone else’s the Western Australian government. view or criteria. This is because the places are In 2003, the Department of Industry and important to the particular Indigenous group in Resources (DoIR) provided a template accordance with their own recognised system of agreement, called the Regional Standard Heritage rules and traditions. To hammer the point home Agreement (RSHA), in an attempt to streamline and make it crystal clear, the determination of a the process. There are regional variations to the significant site or place is evaluated in agreements, which mirror the Native Title accordance with those legally recognised representative areas within Western Australia. traditional laws and practices. The idea of the regional agreements is to allow proponents to continue with low impact activities, Future Acts and Heritage Agreements such as exploratory drilling and minor works, The implementation of the AHA seems to have while ensuring the protection of heritage places coasted along for some three decades with little or avoiding impinging upon any asserted Native change, until the uncertainties of Native Title Title rights. Specific agreements based on these began to accumulate. Proponents in the minerals templates were then drawn up and agreed industry argued strenuously that exploration and between proponents and Native Title claim infrastructure projects could not be put on hold groups. Nonetheless, some exploration companies until such time as the Federal Court determines continue to push for a one-stop, all-inclusive whether or not Native Title rights exist in an area. heritage agreement from initial exploration For their industry and for the wealth of the nation, activities through to more intensive feasibility proponents of minerals exploitation needed to drilling programs and even mining in some cases have confidence that they could proceed with (AMEC 2013). However, RSHAs are contingent their exploratory drilling programs and upon a guarantee that proponents would not development projects. Such works undertaken impact Native Title rights, and therefore were within a Native Title claim area trigger a Future never intended to be for works of intensive Acts process. A Future Act is an activity that will ground (and water) disturbance. or may affect Native Title rights and interests, Few heritage professionals were involved in the whether it be exploration, mining, public works drafting the heritage templates upon which these or granting a water lease. Proponents were regional agreements were based. This is evident encouraged by the State Government’s in the sometimes confused heritage terminology Department of Industry and Resources (DoIR) to used, such as the absurd ‘Site Identification negotiate agreements with Native Title claimant Survey Without Cultural Detail’. One might just groups for the conduct of heritage surveys and as well say a detailed survey and site assessment consulting about related heritage matters. without detail and without site assessment. Although practitioners spend a lot of time talking Unfortunately, many of these agreements are now about the AHA and whether or not a place meets fixed templates, used over and over with the only the definition of a site under section 5 of the changes being proponent details, tenement and AHA, in my experience managing heritage for a claim group details. No one likes these Native Title representative body most heritage agreements. Aboriginal groups and heritage surveys in Western Australia are a result of a professionals think the heritage provisions are Future Act being triggered under Native Title weaker than they should be. Many proponents processes. This can be implied from McGrath (2016:54), also, when she states that more than 32 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 think they are too cumbersome or that Aboriginal deemed important to the Indigenous group, to be people are paid too much (AMEC 2013). consistent with their asserted Native Title rights. In other agreements, clauses relate specifically to I believe the Native Title representative bodies sites as defined under the section 5 of the AHA. and Native Title Services made a strategic The latter is a much more restrictive clause and, blunder in not consulting among themselves to more to the point, places the decision making achieve a consensus for the appropriate heritage about what constitutes a heritage site out of the provisions before agreeing to the often weak and hands of the Aboriginal group itself. There sometimes nonsensical clauses. Some RSHAs are appears to have been an assumption at the time clearly stronger in their heritage provisions to these agreements were drafted that if Aboriginal protect sites, places and objects of importance people considered a place to be worthy of than others. Surprisingly and shockingly, the protection, then so too would the assessing body Yamatji Marlpa Aboriginal Corporation (YMAC) within the Department of Aboriginal Affairs and Central Desert Native Title Service (CDNTS) (DAA), i.e. the Aboriginal Cultural Materials template RSHAs are the only two of which I am Committee (ACMC). Tan (2016:33) points out aware that expand on the definition of a heritage that there is an assumption with regards to the site to include a site or a significant area in AHA itself that the intention of the ‘public accordance with the Aboriginal and Torres Strait benefit’ includes the interests of the Aboriginal Islander Heritage Protection Act 1984 (Cth) or custodians. After all, the ACMC is expected to under the meaning of section 237(b) of the NTA, give serious regard to the views of Aboriginal in addition to a site under the Aboriginal Heritage people in the determination of a site. The AHA Act 1972. It is important to point out, however, states clearly: that many Native Title representative bodies have since succeeded in establishing alternative 10.(1) [S]o far as is reasonably practicable all heritage agreements in place of RSHAs. These places in Western Australia that are of are very similar agreements to RSHAs, except traditional or current sacred, ritual or that they tend to give greater emphasis to asserted ceremonial significance to persons of Aboriginal descent should be recorded on Native Title rights, including broader definitions behalf of the community. of places to be protected from disturbance. Some have also been more successful in negotiating The agreements are usually client confidential, so higher fees for Aboriginal consultants in the it is rare that heritage consultants will see them. heritage process. These agreements are not for Often heritage consultants assume they are major works. Proponents who aim to undertake required to identify ‘sites’, as defined under mining and major works, i.e. works that are likely section 5 of the AHA, even though the to have a more severe impact upon Native Title agreements in place may be open to allow rights and interests, usually engage with Aboriginal informants to identify places and Indigenous groups to develop more rigorous objects to be avoided, which might not be heritage protocols, such as ILUAs. considered ‘sites’ under the AHA. Also, some of these agreements specifically stipulate that A frustrating aspect of both the regional Aboriginal informants may withhold information agreements (RSHA) and the alternative heritage about a site or heritage place from DAA, in agreements is that they are inconsistent from accordance with their asserted Native Title rights region to region, group to group, and proponent or under s.7 of the AHA. However, the Scope of to proponent. In some regions of Western Works provided to consultants by proponents will Australia, the respective Native Title sometimes also state that the consultant is representative bodies and Indigenous groups have required to identify sites in accordance with inserted clauses about protecting places that are section 5 of the AHA, even though the particular 33 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 agreement in place with the Native Title group are fully aware that the DAA plays a significant may not be restricted to section 5. This has role in the ‘approvals process’, and significant become a significant irritation among some of the delays can arise for proponents if all the boxes Native Title representative bodies and their client are not ticked, so to speak. It is in the proponents’ groups. In trying to appease DAA ‘expectations’ interests to co-operate. But obligations to the law with respect to managing the implementation of apply equally to the NTA. The DAA or a the AHA, many proponents are confused about proponent cannot dismiss Native Title law or any what the actual process is under the law; whether rights that have been recognised by it. Yet the to report or not report, and whether a place is a DAA appears to have difficulty with the Federal site under section 5, or something broader than Court recognising that many Indigenous groups section 5. They stumble in a legislative fog, themselves have rights to protect their sites and looking this way to Federal law and then that way significant places. Tan (2016:44) points out a to State law. pivotal difference in conceiving and managing Aboriginal heritage sites and places in accordance Heritage consultants, too, are often conflicted. with Native Title rights or in accordance with DAA have regularly informed consultants that state heritage legislation. Through state they are required to report sites to the legislation places are assessed to see whether they Department, even though s.7 of the AHA itself are significant to the wider community and allows Aboriginal people to withhold such therefore warrant protection under the law, information. And some Aboriginal groups assert whereas under Native Title rights traditional Native Title rights not to disclose information owners have or assert rights to, among other about sites and places. The DAA seems to have things, control access to a place of significance to adopted a view that the right of Aboriginal people them, regardless of its significance under state to withhold information regarding a site or sites heritage legislation. While Native Title rights does not extend to heritage professionals engaged have the potential to offer a greater voice to by Aboriginal organisations to record their Aboriginal people to protect places, it lacks the heritage. Furthermore, many heritage consultants legal enforceability to do so. State legislation, on and proponents have been informed by DAA staff the other hand, has the ability to accept the voice that they are expected to have a report or a site of Aboriginal people above other considerations recording form that meets the requirements of the but because it must consider the wider public AHA. That is fine, except that it implies that interest, it is subject to intense lobbying by the proponents and consultants prioritise the AHA. minerals industry to prioritise potential economic This is made even clearer in the DAA’s Due wealth above all other considerations. Diligence Guidelines, distributed widely to proponents and heritage professionals: Where the AHA could accommodate 2.25 An Aboriginal heritage agreement cannot Native Title rights in heritage dis-allow or modify the operation of the AHA. management All parties are bound by the provisions and obligations of the AHA. The DAA website does, however, make reference to possible Native Title rights held or asserted by Parties to an agreement might not have a high Aboriginal groups that proponents may need to regard for the AHA, or find that the DAA is ‘out consider. But the DAA’s role is to ensure of touch’ or seemingly oblivious to legislative adherence to the AHA; it is not in the business of Native Title rights and processes (a common managing Native Title matters. The fact that a view among heritage consultants). Nevertheless, proponent may have signed a heritage agreement they cannot ignore state law. The AHA is law and with a Native Title group in which sites might be there are obligations to abide by it. Proponents defined more broadly than the AHA is not a 34 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 direct concern for the DAA. But here is the rub. tailored to meet the interests of the specific In the site assessment process the ACMC must Aboriginal communities as well as offering data take into consideration the following (AHA and analysis to the scientific community and the section 39.2): wider public. In practise, archaeologists in Western Australia and among many others a) any existing use or significance attributed recognise the need to incorporate Aboriginal under relevant Aboriginal custom; perspectives in cultural heritage management. b) any former or reputed use or significance which may be attributed upon the basis of There is little evidence that the ACMC shares this tradition, historical association, or Aboriginal perspective or adequately understands the intent sentiment; of the AHA. For example, the ACMC is required c) any potential anthropological, archaeological to take into consideration both s39 of the AHA, or ethnographical interest; and and s.7.1. d) aesthetic values. This Act shall not be construed— With the above in mind, and with a general body (a) so as to take away or restrict any right or of long-standing national and international interest held or enjoyed in respect to any place practice, anthropologists in Western Australia or object to which this Act applies, in so far as seek to elicit comment and meaning from groups that right or interest is exercised in a manner of Aboriginal people about how they value that has been approved by the Aboriginal objects, heritage places and cultural landscapes. possessor or custodian of that place or object They aim to describe a place (or object) and and is not contrary to the usage sanctioned by the Aboriginal tradition relevant to that place or characterise its heritage value to the group in object’. question. Ethnography is, after all, about specific groups and not the wider society in which they If a claim group has attained Native Title rights might live (Zemliansky 2005). As is pointed out (i.e. legal rights) to protect sites, places and by Justice John Chaney in his April 2015 findings objects of significance to them, and have in the WA Supreme Court in Robinson-v- indicated such in the relevant heritage report or Fielding [2015] WASC 108: section 18 notification in relation to particular places, then it is difficult to comprehend how the It is plain that the effective operation of the AH criteria under section 5 of the AHA have not been Act requires input of some kind from Aboriginal people. Aboriginal people are met. At the very least, there is greater scope to necessarily the principal source of information include places under s5 of the AHA, given the as to the existence of sites to which the AH Act ACMC’s contemplation of the assessment criteria applies, and as to the significance and under section s.7 and s.39.2. and with regard to importance of those sites. Native Title rights asserted in heritage Further, reading large numbers of archaeological management. However, the indications are that in reports, it is clear to me that, over the past few recent years the ACMC are paying lip-service to years, archaeologists have understood the s7 and s39 of the AHA and appears to be relying importance of incorporating the Aboriginal voice on some other, less transparent, framework for in a site assessment process. It is now common to assessing sites (Dortch and Sapienza 2016). see in their reports recommendations that the Rights asserted or gained under Native Title and ACMC and / or the proponent should not rely the intention of several clauses in the AHA to solely on an archaeological assessment but also give a level of weight to Aboriginal perspectives note ethnographic perspectives. And much of the are simply being ignored. archaeological mitigation and / or research following successful section 18 consent is 35 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 Administrative 'conjunctivitis' assumption in Native Title that states and territories with an Indigenous heritage act will be Returning to the matter of heritage agreements able to offer effective (i.e. enforceable) support between proponents and Aboriginal groups: if a for such rights (Tan 2016:40). In Western proponent has signed an agreement under the Australia, after all, the ACMC, must consider the Future Acts regime, they are obliged to protect a views of Aboriginal people themselves when heritage place in accordance with the provisions evaluating sites. And where Aboriginal groups of the agreement whether it meets the definition have attained recognised rights to protect sites, of a site under the AHA or not. This does not one would think that the ACMC and the Minister undermine the operation of the AHA. In fact, would be obligated to respect these legal rights. heritage agreements between proponents and However, this does not appear to be the case. It Aboriginal groups are perhaps the most widely seems that the ACMC and the Minister for used templates for protecting heritage sites and Aboriginal Affairs consider that Australian places in Western Australia at the present time. A (Federal) law applies only to the degree that it is proponent must of course seek Ministerial consistent with state law–and in their view under consent to impact a site, if it is determined as state law it is the state Minister that is the such under the AHA. appointed custodian of Aboriginal sites on behalf ACMC assessment processes are confidential. of the whole Western Australia community. They There is no requirement to provide any detailed are, therefore, obliged to balance other interests rationale to Aboriginal parties, proponents or in the community for the benefit of the state. One their respective legal representatives about how it has to wonder whether the ACMC are determined that a place is or is not a site. It is not circumventing the assessing process by a radical idea to suggest that for matters of considering their view on the ‘general interest of transparency and natural justice the ACMC the community’ under s18 of the AHA in should provide a record of its assessment of a determining whether a place should have site place with reference to each of the criteria they status, as if that is a key criterion in defining a are required by law to consider, and that the site under s39. In any event, as the minerals record be made available to the relevant industry expands, heritage management under the Aboriginal and proponent parties. Such matters AHA has increasingly become a process of may be available under Freedom of Information approvals for commercial interests. Heritage processes, but this should be routine procedure, protection applies to a declining percentage of where the DAA is assisting proponents and identified heritage places (Dortch and Sapienza Aboriginal groups in these matters. 2016). Rather, the DAA seems to have adopted a sledge- Landscape approaches to heritage hammer approach to heritage. Although the management ACMC is meant to give serious consideration to Aboriginal views and any anthropological and As industry and infrastructure expand across ethnographic values expressed by consultants, it Western Australia, other management options are is hard to see much evidence of this in recent needed. Landscape approaches to heritage are not years. The net result is that fewer places lodged new, but they are often contested by parties who with the DAA are deemed to be sites and many have other interests in land. I have worked on a places that were once registered sites have since few Native Title claims and it is clear that many been reassessed and no longer listed as sites (see Aboriginal people understand heritage in its Dortch and Sapienza 2016). broader meaning. They will talk of their rights and obligations inherited from previous But what does it mean to have the Native Title generations and their role to protect and manage right to protect a place? There is an implicit 36 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 their heritage. When they talk about places in the development proposals are never-ending (Mayor landscape they often find it difficult to determine of London 2015). It provides a template within a site boundary. One place is connected to which development can take place, while another, and one activity area is part of a larger implementing rules to preserve community and network of activity areas. This becomes more nature parks, line-of-site corridors, areas of light complex when they talk about extensive tracts of and heavy construction, and so on. William Street country imbued with mythological significance. in Perth, and Hanon and Burt streets in Though mythological ‘sites’ are among the sort Kalgoorlie-Boulder are protected heritage of places that the AHA is supposed to protect, precincts within bustling cities (City of Perth many of these areas would not normally be 2015; City of Kalgoorlie Boulder 2008). defined as ‘sites’. In the Central Pilbara area, for Development goes on all around them, and even example, there are many hills and areas sometimes within them. But regulations are associated with a series of intertwining stipulated so that developments cannot impede Dreamtime myths, and these extend over the historic heritage values of these streetscapes. hundreds, and possibly thousands, of square These plans are developed over an extended kilometres. Mythological animals travel from one period of time and involve consultations and hill to another, so that it is not simply a set of meaningful input from multiple stakeholders. isolated hills, but a connected landscape deeply They can be and are regularly achieved. imbued with a mythological narrative. The AHA In Indonesia and areas of Malaysia, to provide focus on ‘sites’ is clearly inadequate here; and its broad landscape examples, agricultural/cultural emphasis on the one-stop process of utilising landscapes in areas of high tourist impact (hotel section 18 in dealing with ‘sites’ would be an developments and so on) are now managed as administrative nightmare for such large areas. part of a heritage plan (Ahmad 2013; Tanudirjo Few would consider that such large areas, or 2013:65-82; Nagaoka 2016). This is a developing similarly large landscapes associated with area of land management in Southeast Asia. millennia-old mythology, could practically be Nearer to hand, in southwest Western Australia a assessed or managed as a single site, but nor project began as a natural resource management could they reasonably be considered as a series of project has since expanded to include cultural disconnected, separate sites. These areas are landscapes with the involvement of local worthy of heritage management, and this could Aboriginal people and heritage professionals. only be done sensibly through a landscape Encouragingly the DAA itself maintained some approach. over-riding guidance (Guilfoyle et al. 2013:101- As I see it, perhaps the biggest obstacle – and it is 116). The aim in all these heritage landscapes is a very big one – is that such a mythological to manage cultural heritage values and landscape extends across large number of often community expectations to preserve a sense of different types of tenements held by multiple regional identity and pride, while also allowing parties, who (collectively) have invested developments to occur and prosper. hundreds of millions or billions of dollars for There is no doubt that implementing cultural mine infrastructure, towns and public works that heritage management plans for landscapes, in have already been built or will likely be which cultural heritage, community needs and proposed. The idea, however, is to manage the development all have a place, would clearly heritage, not to instigate a system of massive require a lot of work and consultations from reserves and exclusion zones. This is done all the multiple parties. But we should advocate heritage time in historical landscapes in cities and towns ‘best practice’ for the 21st century rather than throughout the world. The London Plan, for implementing the ideas from 1972. Native Title, example, was developed for a city in which 37 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 site management, mining and exploration are all editors of JAACA for their support in preparing part of a connected process of land management the presentation for publication. in modern Western Australia. Heritage for Aboriginal people, like people throughout the References world, is woven into a network of relationships Ahmad R 2013, Cultural Landscapes as Heritage in Malaysia, with land, to practices and between people. There Eburon Publishers, Delft. is no reason, if there is a will, why heritage in this Association of Mining and Exploration Companies (AMEC) 2013, Principles for the Future Negotiation of Heritage Agreements’, state cannot be managed in a modern manner for unpublished report prepared by Association of Mining and the greater good. Exploration Companies, 11 March 2013. Byrne DR 2003, ‘Nervous landscapes: race and space in Australia’, Journal of Social Archaeology 3:169-193. Conclusion Chaloner T 2004, ‘The Aboriginal Heritage Act 1972: a clash of two cultures; a conflict between two Laws’. Unpublished report, Disappointingly, the trend within the DAA December 2004. Murdoch University, Perth. administrative processes in the period since Chivallon C 1995, ‘Space and identity in Martinique: towards a new reading of the spatial history of the peasantry’, Environment Native Title was first enacted has increasingly and Planning D: Space and Space 13: 289-309. taken an ‘approvals’ approach in facilitating City of Kalgoorlie Boulder 2015, ‘Development Guidelines for commercial interests. This has a tendency to Heritage Precincts and Places of Heritage Significance’, Local Planning Policy 04, Development Services, City of Kalgoorlie fragment cultural landscapes into a series of Boulder, Western Australia. ‘sites’ that may be compared with one another in City of Kalgoorlie Boulder 2008, ‘Burt Street Precinct Conservation an evaluation schema derived from mid-20th Management Plan’, May 2008, City of Kalgoorlie Boulder, Western Australia. century relics curation paradigm, rather than City of Perth 2015, ‘King Street Heritage Precinct Design united into a rich landscape worthy of broad- Guidelines: Planning Policy Manual – Part 1 Section 6.6’. City of Perth City Planning Scheme No.2 (Amended), March 2015, scope management. Native Title interests in City of Perth, Western Australia. heritage are ignored and Aboriginal people Department of Aboriginal Affairs (DAA) and Department of continue to be denied the right of appeal. This is Premier and Cabinet 2013, ‘Aboriginal Heritage due diligence guidelines’, version 3.0 30 April 2013, DAA, Perth. blatantly unfair. Perhaps the most stinging rebuke Dijk, R van & Pels P 1996, ‘Contested authorities and politics of is that virtually no Indigenous people, Indigenous perception: deconstructing the study of religion in Africa’, in organisations or heritage professionals in Western Postcolonial identities in Africa, eds R Werbner & T. Ranger, Zed Books Ltd, London, pp. 245-270. Australia currently believe that the DAA is Dortch J & Sapienza T 2016, ‘Site Watch: recent changes to committed to protecting heritage. Though there Aboriginal heritage site registration in Western Australia’, Journal of the Australian Association of Consulting are individuals within the department who Archaeologists, 4: 1-12. obviously care about heritage, they are bound to a Guilfoyle D, Mitchell M, Morgan C, Coyne H & Gillies V 2013, bureaucratic process of fast-tracking approvals ‘Exploring the role of archaeology within Indigenous natural resource management: a case study from Western Australia’, in and accelerating the destruction of Indigenous Transcending the culture-nature divide in cultural heritage: heritage by an archaic and narrow interpretation views from the Asia-Pacific Region, eds S Brockwell, S of what constitutes a site. The problem with O’Connor & D Byrne, Australian National University E Press, Terra Australis Vol. 36, ANU, Canberra, pp. 111-116. heritage management in Western Australia is not Australia International Council on Monuments and Sites (ICOMOS) simply a matter of an out-of-date Act that is ill- 2004, The Burra Charter: the Australia ICOMOS Charter for places of cultural significance (with associated Guidelines and equipped to deal with complexities of Code on the Ethics of Co-existence), Australia ICOMOS Inc, contemporary land and heritage management. International Council of Monuments and Sites, Burwood, Rather, the DAA itself is desperately clinging to a Victoria. Klimko O & M Wright 2000, ‘Old rocks and hard places: monolith of outdated thinking to dictate the terms archaeology and land claims / treaty in British Columbia, by which heritage is managed in this state. Canada’, in Native title and the transformation of archaeology in the postcolonial world, ed. I Lilley, Oceania Monograph 50, University of Sydney, Sydney, pp. 88-98. Acknowledgments Lewis G & Scambary B 2016, ‘Sacred bodies and ore bodies: conflicting commodification of landscape by Indigenous Thanks to the organisers of the workshop for the peoples and miners in Australia’s Northern Territory’, in The opportunity to present this paper and to the right to protect sites: Indigenous heritage managements in the 38 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 29-39 era of native title, ed. PL McGrath, AIATSIS Research conflicts and traditions, ed P Nora, (Trans. A Goldhammer), Publications, Canberra, pp. 221-252. Columbia University Press, New York, pp. 1-20. Lloyd G 2012, Legislating to safe-guard Asia’s intangible heritage, Pellow D 1992, ‘Spaces that teach: attachment to the African in Routledge handbook of heritage in Asia, eds P Daly & T compound’, in Place attachment, eds I Altman & SM Low, Winter, Routledge, London, pp. 139-152. Plenum Press, New York, pp. 187-210. Mayne A & Murray T 2001, The Archaeology of Urban Ritter D 2003, ‘Trashing heritage: dilemmas of rights and power in Landscapes: Explorations in Slumland, New Directions in the operation of Western Australia’s Aboriginal Heritage Archaeology, Cambridge University Press, Cambridge. Legislation, Studies in Western Australian History 23: 195-209. Mayor of London 2015, ‘The Current London Plan’. Available from Smith C 1999, ‘Ancestors, place and people: social landscapes in 39 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 From ‘grudge purchase’ to valued asset: why compliance is no longer enough and we need to provide work that has value and meaning JIM WHEELER Jim Wheeler (Extent Heritage Pty Ltd, [email protected]) The recent CHM and the Law Workshop provided a great forum for discussion of current threats to the protection of Aboriginal heritage and identified a range of challenges faced by both the heritage consulting industry and Aboriginal and Torres Strait Islander communities. The workshop focused its attention on the political and ideological undercurrents that are presently influencing changes to the law across Australia. While these drivers are important and need to remain the focus of activism and advocacy, I argue the role the archaeological consulting industry can play in changing what we do and how we do it is equally critical. Introduction shaping our own destiny through meaningful work and advocacy for heritage protection, just as This paper is an adaptation of my presentation at many of the first generation of consultants did. the CHM and the Law Workshop held at the We are not passive players and in the end, we Australian Archaeological Association 2015 have a critical role in shaping the heritage Conference in Fremantle, WA. It is intended as industry that we inherit. an opinion piece on the historical trajectory of heritage consulting and where we, as an industry, The origins of Aboriginal heritage have the ability to influence the future direction protection of heritage consulting. I reflect on the early days of the heritage consulting industry, focusing on As early as 1938, FD McCarthy drafted an Act the political pressures that led to heritage for heritage protection in NSW (McCarthy 1938), protection in the first place and the important role but it was not until the 1960s that formal the first generation of consultants played. I Aboriginal heritage protection was enacted, 6 consider the evolution of the consulting industry beginning in South Australia in 1965 with the and how legislation has developed side by side passing of the Aboriginal and Historical Heritage with the growth of the industry – how they have Protection Act. Following South Australia’s lead, interacted with each other. Aboriginal heritage protection spread remarkably quickly across all state jurisdictions over the next While it is self-evident that legislation and policy development have shaped the nature of the 6 There was an earlier Northern Territory Native industry, it is also clear that the type of work and Historic Objects Heritage Protection done by consultants and the role we have played Ordinance 1955, but was largely ineffectual as it has had a big effect on policy development. This required compulsory acquisition of land as suggests that we have an important role in opposed to blanket protection. Article History: Received 11/09/2016, Accepted 04/12/2016, Published 31/12/2016 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 decade – Tasmania being the last, in 1975 when Protection of Aboriginal heritage also formed part the Aboriginal Relics Act was passed 7 . It is of the political struggle for Aboriginal rights interesting that within the short space of ten years (Atwood 2004). It is no coincidence that the we went from very little protection in any state to formative period when Aboriginal heritage laws protection in every state. This should concern us were enacted overlapped with some of the most because that which can be established in such a important events in the recognition of Aboriginal short time frame can also be unwound in a similar rights arising out of a burgeoning awareness of time frame, as a precedent takes hold in one state injustices (see for example McGuiness 1991:47; and is copied as a ‘successful’ template Jonas & Langton 1994; Eveleigh News, 30 elsewhere. This is what makes the current October, 1957, p.2): legislative and policy changes in Western • 1961: the Australian Institute of Aboriginal Australia an issue that is relevant to all of us Studies is formed in Canberra. across the country, no matter where we live and • 1962: the Commonwealth Electoral Act is work. amended to give the vote to all Aboriginal The establishment of laws to protect Aboriginal people; Aboriginal people in Queensland, heritage did not happen in isolation. They were Western Australia and the Northern Territory developed in a progressive political climate and are given the right to vote in Federal formed part of a broader political movement for elections; and the Aboriginal Affairs Act is protection of heritage generally, or what was enacted in South Australia. commonly referred to as the ‘National Estate’ at • 1965: Freedom Ride, NSW. the time. During the 1972 Federal Election • 1966: Gurindji Wave Hill Station ‘Walk Off’. campaign, Labor Leader Gough Whitlam stated • 1967: Referendum on Constitutional that: Recognition of Aboriginal People. …two overriding objectives [of a Labor • 1972: Aboriginal Housing Corporation Government would be] to preserve and purchase ‘The Block’, Redfern. enhance the quality of the National Estate The role of the public and special interest groups (Bonyhady & Griffiths 1996). was recognised at the time as an important factor Following through on that campaign promise, the in the adoption of legislation. For example, Whitlam Government established the 1973 Sharon Sullivan noted in a 1975 paper entitled Committee of Inquiry into the National Estate ‘The State, People and Archaeologists’ that: chaired by Justice Hope, which played a key role Legislation for the protection of sites in New in highlighting the need for heritage protection South Wales is the result of long term and led to the establishment of the Australian agitation by archaeologists and conservation Heritage Commission in 1975. groups, coupled with a growing demand from the wider public for such protection. 7 1965 Aboriginal and Historical Heritage The demands of reputable archaeologists Protection Act SA; were an important factor, but it was 1969 National Parks and Wildlife Act NSW eventually an awareness of growing public interest and support which prompted the then (amended); Minister for Lands, Tom Lewis, to set up a 1967 Aboriginal Relics Preservation Protection committee to frame the present legislation Act QLD; (1967). By 1970, when the legislation was 1972 Victorian Archaeological and Aboriginal gazetted, such legislation had become an Relics Preservation Act VIC; acceptable social goal, which it had not been 1972 Aboriginal Heritage Act WA; in the 1940's, when the matter was first 1975 Aboriginal Relics Act TAS. 41 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 strongly canvassed by concerned Michael Lever argued that the extent of artefact archaeologists. collecting in Victoria was at such a scale that it The form of the legislation and its has likely distorted the archaeological record we administration by the National Parks and see today (Lever 2016). While on the one hand Wildlife Service, reflects the fact that it was the introduction of laws to protect against primarily designed to protect relics for the amateur artefact collecting was a bureaucratic use and enjoyment of the people of New management response, it also demonstrated a South Wales; therefore preserving sites for growing awareness that the artefacts had research by archaeologists is only one of a scientific and cultural importance worthy of number of state aims. (Sullivan 1975: 23-31) protecting in the first place. Therefore, the need The political will to enact legislation also to protect Aboriginal sites from artefact collectors reflected a genuine public interest in the reflected a newfound value that Australian emerging scientific discoveries that revealed the society placed on Aboriginal heritage. long antiquity of Aboriginal occupation of the The role of individuals, particularly the important country. The incredible discoveries at Lake parts played by John Mulvaney and Isabel Mungo, pushing Aboriginal occupation back McBryde, in agitating for change and undertaking beyond 40,000 years, had a big impact on the public outreach to showcase archaeology as a way in which Aboriginal people and Aboriginal new and interesting field of investigation was cultural heritage was viewed by many also critically important in establishing this Australians. It also had a broader impact on the newfound value given to Aboriginal heritage way Australians saw their own country. As (Bonyhady & Griffiths 1996). historian Tom Griffiths noted: [the] broad understanding of the human The 1970s: A small but dedicated industry antiquity of Australia, always deeply known to Aboriginal people themselves, has been a There are a number of features about the first relatively recent and dramatic event that had generation of heritage consultants and to await the twin revolutions of professional government archaeologists that stand out, in archaeology and radiocarbon dating, both of contrast to the much larger, highly which emerged in local practice in the 1950s professionalised industry we have today. The and 1960s. small cottage industry emerging after the No segment of the history of Homo sapiens’, introduction of heritage laws was very active in wrote archaeologist John Mulvaney, ‘had forums, conferences and establishment of bodies been so escalated since Darwin took time off such as AAA and ICOMOS, a situation that can the Mosaic standard.’ Since the 1960s, be compared with the relatively low participation archaeological dates for human occupation rates that we see today 8 . Some remarkable in Australia have deepened from 13,000 years before the present (at Kenniff Cave in 8 The Australian Association of Consulting Queensland in 1962) to over 40,000 years at Archaeologists Inc (AACAI) had 138 members several sites by the 1980s. (Griffiths 2014: 8) (in all membership categories) for the 2015–2016 The introduction of Aboriginal heritage financial year (data from Cindy Shadiack, protection laws was also, in part, a reaction to AACAI Secretariat Officer). This represents a amateur artefact collecting that resulted in many small fraction of the active consulting industry. Aboriginal sites being picked clean of surface For example, Aboriginal Victoria lists 262 artefacts. In some cases these amateur collectors consultants on its cultural heritage advisor list for literally gathered artefacts by the truckload June 2016, whereas AACAI's website only lists (Mulvaney 1990: 149-150). In a recent paper at 41 members in Victoria – representing only 15% the Victorian Archaeological Colloquium, of the consulting industry. 42 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 developments came out of this early period. Several published, powerful indigenous Foremost among them was the development of outcries (e.g. Langford 1983; Kelly 1975) the Australia ICOMOS Burra Charter in 1979, a established the need for archaeologists to benchmark standard for the conservation and consult with the Aboriginal communities who have custodianship of the cultural management of heritage that has had a major resources they wish to utilize in their studies. influence on the development of heritage (Greer et al. 2002: 266) conservation practice across the world 9 (Colley 2003). The 1980s: Gradual expansion and There was a much greater level of resourcing for government investment state government driven research and The second decade of the industry was marked by management planning, such as the NPWS Sacred a gradual expansion and increasing Sites Survey (Kijas 2005; Creamer 1975, 1988; professionalization of the heritage consulting 2003) and the Victorian Archaeological Survey industry. The Australian Association for (VAS). Some of the best talent and energy was Consulting Archaeologists (AACAI) was formed found in senior government positions, such as in 1980. Much of the early work put into Sharon Sullivan at NPWS and Peter Coutts at developing this industry body was carried out by VAS. This had an important impact on early a small group of pioneering, Sydney-based policy development and practice standards consultants led by people such as Laila Haglund, (Sullivan 1985). The VAS started with a research Helen Brayshaw and Mary Dallas. Their vision drive to expand the limited knowledge at that was a profession based on a code of ethics, time about the State’s Aboriginal archaeological standards and policies designed to bring a level of heritage. It was responsible for prolific quality and professionalism to the industry and a archaeological survey work and an impressive form of industry self-regulation that could hold publication record under the tenure of founding consultants to account for their work. Director Peter Coutts (1975, 1982). With pressure mounting on developers to meet Public participation in archaeological fieldwork the obligations set by the heritage legislation of as volunteers was commonplace. This acted to the preceding decade, agencies such as the NSW strengthen links between archaeological National Parks and Wildlife Service began to researchers and interested members of the public. employ archaeologists and in some cases These links helped to establish a pool of historians and anthropologists. This was an advocates and supporters for archaeology and exciting time when the focus of work moved heritage protection outside the industry. from establishing databases and gathering While noting the positive aspects of the early information to heritage management and heritage industry, it is also important to note there protection. As workload pressure grew, it became were negative features, particularly in the notable infeasible for the heritage agencies to do the lack of Aboriginal participation and inclusion in research in house that was needed to make archaeological investigation work. Aboriginal informed decisions about the impact of cultural / social values were seldom considered developments on Aboriginal sites. This provided alongside archaeological values. During this the impetus for the expansion of a fledgling period, it has been noted that: consulting industry. During this early period a significant amount of consulting work was carried out for government agencies and statutory 9Most recently, the Burra Charter has been the authorities. Some government bodies, such as main inspiration for the China ICOMOS The Electricity Commission of NSW and the Principles Tasmanian Forest Commission, decided that they 43 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 wanted their own advisors and employed capabilities were curtailed – in Victoria the VAS archaeologists. was replaced with Aboriginal Affairs Victoria in 1992. Across most of the country this left a The 1990s and 2000s: Integration with the reduced staff of government archaeologists planning system, expansion and focused on core administrative and permit government outsourcing approval processes. Similarly, government Three big external trends had a significant impact statutory authorities cut back on non-essential on archaeological consulting in the 1990s and in staff by outsourcing their in-house archaeology. many ways set the template for the model of Therefore, significant cut backs in government archaeological consulting that is still with us investment in archaeology (including in the today. university sector), came at exactly the same time as the private sector heritage consulting industry First, heritage formed part of a big expansion in rapidly expanded. Ulm et al. (2005: 11-23 & the scope and application of environmental 2013: 34-43) and Mate and Ulm (2016: 168-183) protection – chiefly achieved through better have tracked these changes through a series of integration of environmental assessment surveys of the profession. In 2015 55% of survey requirements into planning systems. Although respondents were employed in the private sector, most states had very strong blanket protection for a large increase from the 47.9% who reported Aboriginal heritage, many jurisdictions had no private sector employment in 2005, whereas there requirement on development consent authorities, has been a substantial relative decline in such as local councils and state planning government employment, down from 22.7% in agencies, to consider heritage matters. Therefore, 2005 to 12% in 2015 (Mate & Ulm 2016: 174). in practice, most heritage went unprotected unless While university sector employment has been identified during the course of development more or less stable between 2005 and 2015 works by a keen-eyed observer. This all began (25.1% in 2005 and 24% in 2015), Ulm et al. changing in the 1990s and 2000s as heritage (2005: 11-23) cited a similar industry analysis by increasingly became linked into the planning Truscott and Smith (1993: 217-221) in the mid- system in most states. Where this did not happen 1990s that found 36.9% of archaeologists in in a formal sense, many local government permanent positions were employed in the authorities developed their own policies requiring university sector, indicating that a sizable shift heritage protection and assessment. These from academia occurred in the 1990s. The changes greatly increased the demand for heritage surveys undertaken by Sean Ulm and his consultants and opened up new opportunities for colleagues demonstrate that the structural shift in employment in environmental and town planning employment from government to the private consultancy firms. As an indicator of the quantum sector over the last two decades has been increase in consulting work during this period, considerable. Maclaren North found that historical archaeological permit approvals tripled in Third, new forms of professional standardisation Victoria and more than quadrupled in NSW developed in construction and engineering during the period 1997-2005 (North 2007: 214, industries and spread across into environmental 232). and heritage consulting. The philosophy underpinning these systems was consistency, Second, the heritage consulting industry was traceability and replicability. The systems were affected by outsourcing and downsizing as small conceived in hard science fields where problems government and austerity politics came to and solutions are considered quantifiable and a dominate policy making. Government heritage system can be reduced into a detailed flow chart, agencies were downsized, and their research and where precise metrics can be provided. In 44 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 part, this can be viewed in an environment where Code of Practice for Archaeological increasing criticisms were levelled at what has Investigation of Aboriginal Objects in New South been referred to as ‘the imperfect empiricism of Wales (Office of Environment, Climate Change the social sciences’ (Spencer 1987: 331-372). and Water 2010) referred to as ‘The Code’ by These systems gradually seeped into practitioners. It mandates the dimensions of environmental and heritage consulting with the excavation units, specifies distance between each well-intentioned aim of creating higher consistent excavation trench, requires excavations to be and measurable standards of work. However, as placed on a grid layout and excludes the use of argued at greater length below, it is questionable mechanical excavation methods. This replaced an how well these systems apply to a social science earlier expansive set of guidelines, the NPWS field like heritage, where answers are not always Standards and Guidelines Kit 1997 (NPWS 1997) absolute and where there are a range of different that included the Standards for Aboriginal research approaches and methods, both Heritage Management Manual, written primarily quantitative and qualitative, that can be applied to by Denis Byrne of the National Parks and understanding and answering them. Wildlife Service Cultural Heritage Services Division. The latter provided a wide scope of The last decade: increasingly prescriptive approaches and methods and required consultants heritage management regimes to think and engage in how they approached each The last decade has seen a marked increase in particular project and its associated range of standardisation and templating being applied to values and archaeological research potential. This archaeology. Government heritage agencies have example from NSW is a good example of how been at the forefront of driving this change the heritage management system has become through legislation and policy development. The more process oriented rather than outcomes big change of the last 10 years has been the oriented. introduction of permit-less assessment systems I and others (Wheeler et al. 2010) have argued that allow qualified archaeologists to undertake that the ‘one size fits all’ approach embodied by fieldwork with little or no pre-approval, on the standards like the NSW Code and the Victorian proviso that a set of prescriptive standards and Aboriginal Heritage Regulations 2007 have acted guidelines are followed. One example of this is to discourage innovation, restrict new thinking the Aboriginal Heritage Regulations 2007 in and make it difficult to implement research-based Victoria. There are three main reasons I have approaches to heritage work. For government, personally heard cited for the introduction of however, the beauty of prescriptive systems of these systems - a lack of government resources to assessment is they can be much more easily deal with the volume of assessment and administered by a small number of public excavation work; the need to enforce basic servants managing a large approval workload. minimum standards in the industry; and last the The development of these systems has number of new, relatively inexperienced undoubtedly provided efficiencies for archaeologists who have entered the industry in government, but I would argue it has been at the the last decade and been employed to meet the cost of quality and innovation in Aboriginal rapidly increasing demand for heritage heritage assessment and management work assessments. Hence, government agencies have delivered by the industry. sought to introduce simple, ‘one size fits all’ standards that can be easily followed and easily The evolution of consulting: cause and checked off and approved by government. effect This ‘one size fits all’ approach to heritage In the evolution of the consulting industry each management and assessment is exemplified in the external change that has affected it has prompted 45 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 a corresponding internal adjustment within the It has become a regular refrain from development industry, and this has then affected the next round proponents, Aboriginal stakeholders and of external change. For example, when heritage academic researchers to question the value of was integrated into planning systems, requiring archaeological survey and testing programs that heritage assessments to support many types of have become the bread and butter of the development approval, it suddenly increased the consulting industry across the growth areas of the need for qualified archaeologists to meet demand. major capital cities. Proponents want to know This resulted (at different times in each state) in a what new things have been learnt as a result of cohort of relatively inexperienced archaeologists money spent on heritage consulting work and being employed as consultants to write reports to they increasingly want to know how this new support these approvals. During the same period knowledge can be incorporated into government began cutting back and outsourcing interpretation. Aboriginal stakeholders want to their in-house capabilities as balanced budget and know what has been discovered about their austerity politics started to gain traction. ancestral use of the land and how their important Therefore, in order to manage the greater intangible values can be protected and workload with fewer staff, the heritage consent remembered. The broader community wants to authorities decided to adopt simplified ‘one size know what has been learnt that new residents fits all’ systems in an attempt to manage the moving into a growth area suburb would find compliance approval workload and achieve some interesting and enriching about their new home. measure of consistency. This has led us to where Academic researchers want to know what we are now – an industry focus firmly placed on information can be drawn out of the consulting compliance. grey literature to inform current research. In observing the past history of cause and effect As a profession, if we do not engage with these in the heritage consulting industry, there is a clear issues and consider the value our work provides risk that the current compliance focus within a to people, we are at risk of finding ourselves in a prescriptive heritage management framework position where: could have a detrimental impact on innovation, • Government, development industry and research output and public value in what is at Aboriginal community see limited value in heart a science that lives and dies on public the archaeological work – because it is seen interest and Aboriginal community support. as a hollow compliance exercise; Although there have been some gains from the • The only observable value for retention of standardization and setting of prescriptive legal protection is seen as the opportunity it minimum standards, in that they have raised the provides for Aboriginal community floor level so to speak, they have also created participation and employment in ‘cultural barriers and disincentives for consultants to recovery’ of artefacts; and implement new approaches and new thinking that • Regulators decide that cutting out the allow the field to develop and provide more value archaeological component and providing back to the community for the money that is employment straight to the Aboriginal spent on heritage. These barriers and community achieves the same objective at disincentives have shifted the industry towards reduced cost. process-oriented heritage assessment work focused on data gathering, or what Graham Is there cause for optimism? Connah referred to as ‘stamp collecting’ (Connah 1983). There are some very promising new trends and initiatives aimed at providing more value for money spent on cultural heritage. These also 46 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 expand the scope of what a heritage project gives and consulting industry can provide, but in back to stakeholders. Some are being driven general these opportunities go begging because within government such as the recent intangible archaeology departments rely on old funding and heritage protection provisions established in research models. Much of the heavy lifting also Victoria, but many are coming organically from needs to come from within the heritage Aboriginal communities, consultants and clients. consulting industry – to produce high quality Notable trends that have emerged in the last two work, promote and publish their results and to three years include a large increase in cultural become advocates of their work. values assessment and mapping; an increase in collaborative projects with Aboriginal community Conclusion organisations and businesses with a focus on As an industry, we cannot afford to sit above the outcomes and research; a significant increase in fray and assume that current levels of heritage Aboriginal heritage interpretation and public protection will remain locked in place for all heritage projects; and renewed advocacy for time. Nor can we afford to believe the prevailing protection of Aboriginal heritage – particularly conservative politics will suddenly shift in our amongst consultants, academics and activists in favour. We need to be mindful that the law is Western Australia. These new trends are largely a reflection of popular will – or put promising because they share a common thread another way, a reflection of what is valued by the of improving what the system of heritage general community. If the community value protection provides back. If Aboriginal archaeological investigation and recording of communities, clients and the general population Aboriginal sites, it is more likely that our elected appreciate the information we provide as an politicians will maintain laws to protect its industry, then political support is likely to follow continued role in Aboriginal heritage protection. and protection will remain strong. If it is not valued or perceived to provide little In my view these new trends need to be value, then it is open for review. reinforced, and accompanied by a renewed We need to advocate for innovative and advocacy for research in consulting meaningful outcomes from the cultural heritage archaeological assessment work. Tick box management process that provides value to the process-oriented assessment work that simply Aboriginal community and the broader measures presence / absence and ‘hit’ or ‘miss’ community alike. Only then will we start to shift impact are archaeology dumbed-down. As a both perception and the reality that our work is a group of people, we did not join this profession to grudge purchase paid solely to obtain a do that kind of work –- we need to, and can do, compliance approval. Support from the much better. Forums for discussion and Aboriginal community for our role in conserving presentation of consulting-based research such as their heritage and support from government, the excellent Victorian Archaeology Colloquium developers, consent authorities and the general convened by La Trobe University and the community for heritage protection are two sides AACAI journal JAACA are important and should of the same coin. If we can show what we do is be supported and expanded. There is also a very important and has meaning and importance, the important role for government heritage agencies support for our role will follow. to encourage better research and set the policy levers that already exist within the scope of their Acknowledgements legislation to support innovative and interesting Firstly, I would like to thank the organisers of the work. Universities also need to get involved. CHM & the Law workshop, JJ McDermott, There is a large, untapped source of funds for Emma Beckett, Sam Harper and Meg Berry for cash-strapped universities that the private sector 47 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 40-48 inviting me to present at the workshop and Jonas B & Langton M 1994, The Little Red, Yellow and Black (and Green and Blue and White) Book, Australian institute of publish this paper in JAACA. Thanks also to the Aboriginal and Torres Strait Islander Studies, Canberra. Editors of JAACA Jim Rhoads and Caroline Bird Kijas J 2005, Revival Renewal and Return: Ray Kelly and the NSW for their constructive review and comments Sites of Significance Survey, Department of Environment and Conservation, Hurstville NSW. which helped improve the final version of this Lever M 2016, ‘A damaged past – the effects of historical stone paper. I would also like to acknowledge the artefact collecting on the lithic record in Victoria’, unpublished contributions and suggestions made by Susan paper presented at the Victorian Archaeological Colloquium 2016, 5 February 2016, La Trobe University, Bundoora. McIntyre Tamwoy, Billy Griffiths, Maclaren Mate G & Ulm S 2016, ‘Another Snapshot for the album: a decade North and Peter Douglas who kindly agreed to of Australian Archaeology in Profile survey data’, Australian Archaeology 82: 168-183 review draft versions of the paper. Finally, I McCarthy FD 1938, 'Aboriginal Relics and their Preservation', would also like to thank the many colleagues and Mankind 2 (5): 120-126. mentors who have been an important influence on McGuinness J 1991, Joe McGinness. Son of Alyandabu – my fight for Aboriginal rights, University of Queensland Press, St Lucia. my thinking about the direction of heritage Mulvaney J 1990, ‘Section III – Foreword’ in Prehistory and consulting, particularly Paul Irish, Peter Douglas, Heritage. The Writings of John Mulvaney, ed J Mulvaney, Sharon Lane, Alan Williams, Maclaren North, Australian National University, Canberra, pp. 149-150. North M 2007, Protecting the past for the public good: archaeology Harry Webber, Susan McIntyre Tamwoy and and Australian heritage law. Unpublished PhD thesis, Lisa Newell. University of Sydney. Available from: http://hdl.handle.net/2123/1602. Spencer E 1987, ‘The Imperfect Empiricism of the Social Sciences’, References Sociological Forum 2 (2): 331-372 Sullivan S 1975, ‘The State, People and Archaeologists’, Australian Atwood B 2004, Rights for Aborigines, Allen and Unwin, Crows Archaeology 2: 23-31 Nest NSW. Sullivan S 1985, ‘The custodianship of Aboriginal Sites in Bonyhady T & Griffiths T (eds) 1996, Prehistory to Politics: John Southeastern Australia’, in Who owns the past?, ed. Isabel Mulvaney, the Humanities and the Public Intellectual, McBryde, Melbourne University Press, Melbourne, p 145. Melbourne University Publishing, Melbourne. Truscott M C & Smith L 1993, ‘Some descriptive statistics of Colley S 2002, Uncovering Australia: Archaeology, Indigenous permanent employment in Australian archaeology’ in Women in People and the Public, Allen and Unwin, Crows Nest. archaeology: A feminist critique, eds H du Cros & L Smith, Connah G 1983 ‘Stamp-collecting or Increasing Understanding? : ,Occasional Papers in Prehistory 23, Department of Prehistory, The Dilemma of Historical Archaeology’, Australian Historical Research School of Pacific Studies, Australian National Archaeology 1:15-21. University, Canberra, pp. 217-221. Coutts PJF 1975, ‘Victorian Relics Office’, Australian Archaeology Ulm S, Nichols S & Dalley C 2005, ‘Mapping the shape of 2:32-33. contemporary Australian archaeology: Implications for Coutts PJF 1982, ‘Management of the Aboriginal cultural heritage Archaeology teaching and learning’, Australian Archaeology in Victoria’ in Cultural Resource Management in Victoria 61: 11-23 1979- 1981, ed. P.J.F. Coutts ,Victoria Archaeological Survey, Ulm S, Mate G, Dalley C & Nichols S 2013, ‘A working profile: Melbourne, pp. 85-114. The changing face of professional archaeology in Australia’, Creamer H 1975, ‘From the “Cultural Bind” to a solution: the Australian Archaeology 76:34-43 survey of Aboriginal sacred sites in New South Wales’, Wheeler J, Irish P, Lane S & Gilchrist A 2010, ‘Dumbing-down: the Australian Archaeology 2: 17-23 push towards prescription and what this means for the future Creamer H 1988, ‘Aboriginality in New South Wales: Beyond the direction of archaeological consulting’, unpublished paper image of cultureless outcasts’, in Past and Present: The presented at the Australia Archaeological Association Construction of Aboriginality, ed. J Beckett, Aboriginal Studies Conference 2010, Batemans Bay, NSW. Press, Canberra, pp 45-62. Creamer H 2003, Working with Aboriginal Communities in NSW: 30 years on, Department of Environment and Conservation seminar, Darlington Park Resort Arrawarra, 13 May 2003. Greer S, Harrison R & McIntyre-Tamwoy S 2002, ‘Community- based archaeology in Australia’, World Archaeology 34: 265– 287. Griffiths T 2014, ‘History Under the Southern Cross, Tom Griffiths ANU’, Launch of the Collaborative Research Centre in Australian History, Federation University, Ballarat 9 May 2014. Available from: 48 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 Cultural heritage, the law, and activism in Western Australia: Perspectives from the pindan at James Price Point, Kimberley ELIZABETH VAUGHAN Elizabeth Vaughan ([email protected]) Activism and protest is an important aspect of heritage protection with a long-established history in Western Australia (WA). This paper describes community activism against the building of a gas hub at James Price Point, north of Broome, WA. Between 2009 and 2012, this campaign would become a juggernaut—an iconic, large-scale protest movement reminiscent of the Franklin River Dam protests of the seventies and eighties. This analysis provides an account of the significance of the James Price Point area, the reasons for the protest movement, and a discussion of the embroiled Aboriginal and native title politics—including the interaction with government and environmental groups. It also reports on the practical aspects of the campaign including the tactics, logistics and outcomes of the activist groups. It concludes with lessons learnt from the campaign, and the current controversy about legally protecting Aboriginal sites under state legislation in the area. Author’s Note: Aboriginal and Torres Strait Islander people are advised that this paper contains images of deceased people. Introduction community chose to invest so much in a protest of this magnitude and length. The spiritual, Discussion about Aboriginal heritage protection cultural and emotional drivers of the campaign, and management can often centre around the ultimate motivators, are also discussed. statistics and critiques of legislation (e.g. Herriman 2013; Ritter 2003; Senior 1995). In this Background information sense, the 'pointy end' of cultural heritage protection is quite different—people engaged in James Price Point is a popular recreational and deeply emotional, physical, unlawful, frightening, fishing location for locals and tourists situated exhausting and often traumatic activities with the approximately 60 kilometres north of Broome aim of preventing damage to cultural sites. (Figure 1). It contains a number of registered and unregistered Aboriginal sites, monsoonal vine This report concerns some of the activism thickets, bilby habitats, ancient dinosaur undertaken in opposition to the construction of a trackways and coral reefs. The coastal strip forms gas hub at James Price Point in the Kimberley part of an Aboriginal song cycle, a continuous during the period 2008 to 2012, peaking in 2011. dreaming track that incorporates the Lurujarri It is intended as a descriptive account of some of Heritage Trail extending from Cape Leveque to the tactics, organisation, logistics and outcomes south of Broome (Figure 2) (TWS 2015). The that took place to protect the environs of the area, Lurujarri Heritage Trail was founded by including cultural and natural heritage. Further Goolarabooloo elder Paddy Roe in 1987 as a the paper examines more profound reasons why a Article History: Received 07/06/2016, Accepted 29/11/2016, Published 31/12/2016 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 trigger to encourage Goolarabooloo people to Browse Basin, 425 kilometres offshore. The gas walk the Country again, and to ‘wake up’ non- fields contain 15.5 trillion cubic feet of dry gas Aboriginal people to a relationship with the land. and 417 million barrels of condensate (Gourvenec Also, intended as part of reconciliation, the trail 2013). Woodside Energy held the largest stake, sought to foster trust and empathy between the and the joint venture partners included Chevron, Aboriginal and non-Aboriginal communities. BHP Billiton, BP, Shell and Inpex. The WA Today, the Lurujarri Heritage Trail is a popular government was also a major proponent, through tri-annual event where participants undertake an its ownership of the retention leases for eight-day walking journey following the song developing the Browse resource (DMP 2014). cycle through living country (GMIC 2013). Activism and Aboriginal heritage in WA Social activism is a long-established phenomenon in WA, engaged against destruction of cultural heritage and sites. Perhaps the earliest significant protest in modern times concerned the site of Weebo in the Goldfields, in the effort to stop sacred stones being removed from the site for commercial reasons by a prospector in 1969 (Thomas 1969). The stones as well as the site itself were connected to ritual and ceremonial Figure 1. Location of James Price Point in the Kimberley, Western Australia. Image: The Wilderness activities, and it was this dispute that stimulated Society. the enactment of WA’s Aboriginal Heritage Act in 1972 (Vaughan 2015). The 1980 Noonkanbah dispute eleven years later became synonymous with Aboriginal activism and rights to heritage. It drew national attention to the threat Kimberley Aboriginal cultural sites were exposed to from mining exploration. It also challenged existing definitions of what an Aboriginal ‘site’ could be, and brought attention to the concept of cultural landscapes, zones of influence, and how to integrate mythologies in legislation (Hawke and Gallagher 1989). It was at this moment in history that the WA government changed heritage protection laws by narrowing definitions of what heritage could be protected, as heritage laws began being perceived as road blocks to development (Vaughan 2016). Figure 2. Map showing a portion of the song cycle within Decades later, plans to build a gas hub on the the Goolarabooloo native title claim area. In bold is the coast at James Price Point ignited community proposed footprint of the gas precinct. Image: Waters 2015 activism from 2008 on the basis that it would damage Aboriginal heritage sites and the James Price Point was the site chosen by the WA environment (Figure 3). Government and Woodside Energy Limited (hereafter ‘Woodside’) for a gas hub that would process gas from the 140,000 square kilometre 50 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 group, signed an in-principle heads of agreement with Woodside and the WA Government to process gas onshore at James Price Point. This agreement paved the way for cultural and environmental studies to be undertaken before any final agreement on the site, which was scheduled for the end of 2010 (TWS 2015). Goolarabooloo Law Boss, first named native title claimant (NTC) for the James Price Point area and anti-gas hub campaigner, Joseph Roe, was controversially replaced as first named NTC by pro-gas hub Anthony Watson within two years of negotiation (Collins 2011a). Views of Aboriginal people were split, with some supporting the establishment of the gas hub that would bring a 1.5-billion-dollar benefits package. Others vehemently opposed the industrialisation, claiming the unspoilt environs and cultural landscape was worth more. Wayne Bergman (then CEO of the KLC) slammed gas hub Figure 3. A demonstration held by Gas Free Kimberley opponents stating they were fly-in fly-out to draw attention to Woodside’s use of water from the environmentalists. He states "I still seethe over local aquifer. The media statement released quoted Mr the role the Greens played in dividing our people Daines who sat atop the pole for a number of hours and our community and turning Aboriginal halting Woodside’s work; “The water they’re taking now – up to 5,200L a day - is just the tip of the iceberg. If the family against family, particularly in Broome" gas plant goes ahead, as much as 21,000L of fresh water (Barrass 2016:1). In a 2012 episode of ABC’s Q will be used, day in, day out”. Image: Gas Free & A, Jabirr Jabirr elder Rita Augustine asked Kimberley. then Greens leader Bob Brown: Aboriginal politics in the James Price [t]he money we will get if the project goes Point dispute ahead is not going into our back pockets. We are going to use it to save our people’s lives James Price Point was subject to a joint native and our culture through education, jobs and title claim by Goolarabooloo and Jabirr Jabirr for better health and housing. Is that too much to 15 years. In 2013, however, the two groups ask for? I know you care about the whales agreed to split the claim as Goolarabooloo and dinosaur footprints, but what about us? remained fierce opponents to the gas hub, at odds (Burnside 2013:2). with the Kimberley Land Council’s (KLC) However, Aboriginal opposition to the gas hub position (Park 2013). The KLC were given $17 was fundamental to the no gas campaign, with million by the state government to pay for the Aboriginal people significantly contributing to on negotiation process. Some have labeled this the ground protests, arrests, spearheading legal bribery, arguing it placed excessive pressure on challenges and awareness campaigns. Of course, council to ensure native title claimants said yes to the opinions and values in the Aboriginal the gas hub (Curtis 2013). community are not homogenous, being as varied In 2009 the KLC, acting on its own behalf and as as the wider community. This heterogeneity was the prescribed native title representative body for not adequately recognised during negotiations the Goolarabooloo–Jabirr Jabirr (GJJ) claim and disputes – with government, industry and 51 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 commentators being more inclined to lump the fact the process prior to that was, you had to whole community together. However, this is not be eighteen to vote. I looked around the an empirical reality, and whilst the government room and there were very many, many, negotiated with the KLC as the official many young people voting. So, I had a question in my mind about that … why are representative body, there was venomous these young people here? And I was told that rejection of the KLC by a large section of the the age had been dropped down to Aboriginal community. KLC was referred to as fifteen/sixteen. So, that they were allowed to standing for ‘Killing Land and Culture’, and vote. Only 168 said yes. 108 said no. And compliant traditional owners working as liaisons the larger number of the Jabirr-Jabirr people with Woodside were derogatorily called ‘rent a did not get to vote … who weren’t allowed TO’ by other Aboriginal people. to be a part of the voting process… (Kelly and Torres 2011:2). The James Price Point dispute highlighted realities and issues on who has the right to speak During Woodside’s preliminary works at James for Country, who has the right to give permission Price Point, traditional owners were present as for development, and with whom government and heritage guides. In August 2011, I had the industry are advised, required, obligated or opportunity with an associate to speak with two choose to negotiate with in the Aboriginal young traditional owners on the corner of Manari community. In the James Price Point case, the Rd, the turnoff to James Price Point when coming WA government and Woodside negotiated and from Broome. This area was known locally as liaised with the KLC and pro-development ‘Black Tank’, the site of the permanent blockade individuals. In May 2011, a vote of native title and the location of an activist camp and claimants was held in Broome, where attendees information centre. The young traditional owners voted 164 to 108 in favour of the gas hub, with had taken a taxi out to the location and were five abstaining. Wayne Barker, a spokesperson waiting to be picked up by the Woodside bus and for the traditional owners, stated that the approval taken on site. My associate asked their roles and was forced, due to the threat of compulsory where they were from. Both traditional owners acquisition. Referring to Premier Colin Barnett, were from Queensland, and neither had been to Barker states, "he calls it self-determination, we James Price Point before. Presumably, the call it standing on our own feet with a gun to our traditional owners were eligible to liaise with head." (Collins 2011b:1) I note here that the anti- Woodside as local guides through kinship ties gas community contested the processes under native title. However, this was met with surrounding the KLC vote. Claims were made disgust by local anti-gas Aboriginal people that the pro-gas hub KLC attempted to bolster the attending the blockade. This may be an indication ‘yes’ vote by paying travel costs to pro-gas of a system that can be manipulated, an opinion traditional owners to attend the meeting, and which was shared among many people within the lowering the voting age to 16. In a September Broome community. 2011 interview, traditional owner and Jabirr Jabirr woman Mitch Torres states the voting The significance of James Price Point and process was flawed, and many questionable the mounting of a movement actions were taken: The James Price Point campaign captured the Families were left off the voting. They minds and hearts of people around the world. weren’t able to get their ‘apical ancestors’ Whilst the political and Aboriginal components reports included. And yet, on the day people of the James Price Point dispute were incredibly were being signed up. I was witness to that. I complex, symbolically it was easy to identify also understand that, many, many young with. On the surface, it was the age-old tale of the people were given the right to vote. When in big end of town, big government and big mining 52 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 corporations over-powering the locals and again (TWS), and other non-government organisations colonising the Aborigines–money and power (NGO’s)—including Sea Shepherd, Greenpeace, versus tradition, nature and culture. This romantic the Forest Alliance and the Bob Brown scenario coupled with the dramatic scenery of the Foundation. Kimberley, strong Aboriginal culture–the tag of The Greens party, particularly through its the Kimberley as ‘a last great wilderness’— member for the Mining and Pastoral Region, the combined in a way that captivated the attention of Honourable Robin Chapple, contributed greatly wider Australia. The local dissenters were able to to sourcing information and exerting political capitalise on this attention to tell the story to the pressure by questioning the State Government in world. Parliamentary Question Time. Greens Senators In reality, the James Price Point dispute gouged Rachel Siewert and Scott Ludlam raised out and exposed a new landscape of native title questions about the gas plant in Federal and Aboriginal politics. In a very public and Parliament. Over the six years of the campaign bitter way, new territory of land ownership, there were countless different actions undertaken. custodianship, land commodification through Some significant ones are discussed below. native title, the formation of alliances (green/ Aboriginal and industry/government/Aboriginal) was played out. There was outrage as the WA Government attempted to compulsorily acquire the land at James Price Point, where Goolarabooloo responded with a legal challenge. There was the alleged rise of what has been called a ‘black mafia’, where particularly powerful Aboriginal factions controlled the ear of government and industry, while others opposed the project and were cut out of negotiations. These are incredibly complex phenomena that are likely to characterise issues regarding Aboriginal heritage protection Australia wide, still being worked out in the post-native title arena. These issues, acknowledge here, are outside the scope of this paper (but see McGrath 2016 for a discussion of heritage protection in the native title era). The campaign opposing the gas hub was a juggernaut and included many separate groups that arose independently. These groups converged Figure 4. The Walmadany Declaration. Image: Elizabeth as the campaign intensified, all working with the Vaughan single objective to stop the gas hub. These community groups included Broome Families, In November 2009, STK took a crucial step by Broome Community No Gas and Protect the drafting the Walmadany declaration (Figure 4). In Kimberley. The issue would also become the a month 212 signatures were collected from main focus for Save the Kimberley (STK) and Aboriginal people from the Dampier Peninsula. Environs Kimberley. James Price Point was taken The Walmadany Declaration was signed by up as a key campaign by The Wilderness Society Goolarabooloo and Jabirr Jabirr people who endorsed Joseph Roe as Senior Law Boss of the 53 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 Country, and stating they do not consent to the the figurehead of this action (Robert Vaughan development of an LNG precinct on their land. 2015, pers. comm.). Several concerts were The declaration was taken to Canberra, and arranged throughout the campaign, including the Joseph Roe and STK directors met with the joint highly significant Cable Beach floating concert venture partners in Perth and presented them with (performers were on the vessel Karma IV moored the declaration (Robert Vaughan 2015, pers. just off shore). Attended by an estimate 5000 comm.). people, the event was organised by Broome Families after ‘Black Tuesday’ 10 to celebrate Kimberley families and communities (Figure 6). In 2013, Musician John Butler organised and funded a concert and demonstration in Fremantle, attended by an estimated 20,000 people, to raise money and awareness for the Kimberley campaign. Dr Anne Poelina (traditional owner/ scientist), in partnership with the Goolarabooloo, organised a nooloo (corroboree) at Walmadan (James Price Point) in 2011. This celebration was intended to show the senior elders’ gratitude “that we must all together hold Walmadan for all of us” (STK 2011d). Singers at the nooloo were Phillip Roe, Mick Michael (Wiljany) and Paddy Neowarra, with 300 participants (STK 2011d). Figure 5. Browse proponent Inpex proposed to process Delegations went to Canberra for meetings with their Browse Basin gas on the remote islands, and had erected a jack up rig (pictured). Protesters travelled federal politicians. In March 2011, STK front hundreds of kilometres to attach banners to Inpex’s men and traditional owners Neil McKenzie and drilling rig. Image: Hugh Brown Albert Wiggan, with TWS representatives and members of the Broome community met with the Federal Environment Minister, Tony Burke, to outline their case against the gas plant (STK 2011c). The Minister held back on giving a final decision for the project’s environmental approval. Later, Tony Burke came to James Price Point to meet with STK members and members of the Broome community, when he announced national 10 Tuesday 5th July 2011 is locally referred to as Figure 6. Concert at Cable Beach with musicians playing ‘Black Tuesday’. This is the day approximately on the vessel Karma IV. Image: Save the Kimberley 80 police broke the 30-day strong blockade on In 2007, STK mobilised perhaps the most remote Manari Road, which had prevented Woodside protest ever undertaken, at the Maret Islands from accessing James Price Point to proceed with along the Kimberley coast (Figure 5). STK hired the preliminary clearing works. The police then float planes, engaged local charter vessels to be escorted Woodside to the location, where they present for support, and had iconic Kimberley began clearing vegetation. Twenty-five arrests adventurer and STK director Malcolm Douglas as were made that day (STK 2011b). 54 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 heritage listing for the West Kimberley (STK Several battles in the campaign were fought out 2011a). in the courts. Neil McKenzie and Philip Roe of Jabirr Jabirr and Goolarabooloo, respectively, Celebrity support was engaged to help raise challenged the WA Government’s decision to awareness of the campaign. Many Australian compulsorily acquire land at James Price Point. celebrities lent their support both by being in the Chief Justice Martin ruled in December 2011 that spotlight and working behind the scenes. These the WA Governments action was invalid (Lawson people included musicians John Butler, Missy and Moulton 2011). A subsequent court challenge Higgins, Rob Hirst, Xavier Rudd, Jimmy Barnes; was made in 2013 against the WA Environmental television presenter George Negus; author Di Protection Agency (EPA) by Richard Hunter of Morrissey and actor Michael Caton. Their public Goolarabooloo and TWS. In August 2013, Chief status was used to draw attention to the campaign Justice Martin ruled that the EPA’s decision to effort. Michael Caton is famous for playing approve the James Price Point gas hub was embattled father Darryl Kerrigan in the 1997 unlawful because there were a number of movie The Castle, where his character takes the conflicts of interest amongst EPA board members government to court for compulsorily acquiring (Burrell 2013). his house. Symbolically, Caton, along with Nik Weavers (former Broome shire councilor) and Activists who manned the blockade at Black Neil McKenzie (Jabirr Jabirr man and STK Tank and Camp Walmadan for months, endured director) delivered 12,000 postcards to Prime fines, move on notices and arrests, but succeeded Minister Julia Gillard that were signed by people in delaying Woodside from beginning their from all over Australia with the message to save preliminary clearing works at James Price Point. James Price Point (Figure 7). In the delivery Activists camped at Black Tank, or arrived before Caton stated, "a gas plant at James Price Point? sunrise to block the road. They stood or sat along Tell ’em they’re dreamin’"—taking off a famous the right of way such that Woodside vehicles line from the movie (Robert Vaughan 2015, pers. could not pass. Police then came and moved comm.). people along. To prevent this, some activists obstructed the way by chaining themselves to an old car, concrete blocks and Woodside’s machinery (for example). This stalled Woodside’s access to the site until the activist was removed, which often took hours. The activists who were arrested comprised a varied group of people. Traditional Owner Janet Cox was arrested for refusing to move from her chair in the middle of the road on Black Tuesday (Figure 8). Two Broome grandmothers in their 60s locked themselves onto a vehicle for seven and a half hours, and were subsequently arrested. A 19-year-old Aboriginal woman, Trish Whitehouse, from Broome was arrested, stating she had chosen arrest because she regards James Figure 7. Michael Caton, Nik Weavers and Neil Price Point as Aboriginal land too important to be McKenzie deliver 12,000 signed postcards to Julia Gillard in Canberra. Image: Alan Porritt (AAP) industrialised (Collins et al. 2011). Others arrested came from all over Australia travelling to James Price Point to join the protest movement. 55 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 were stationed night and day at the Woodside compound in Broome, and also in a surveillance van parked on the Cape Leveque turnoff. Campaigners hired planes to take aerial photographs of the land clearing at James Price Point by Woodside, and the latest photographs would be driven up to Camp Walmadan. Here, the Goolarabooloo and their supporters camped for weeks and months, planning actions to halt Woodside’s activities. Dozens of tents were Figure 8. Janet Cox is arrested on Black Friday 2011 scattered through the bush around the camp during NAIDOC Week. Image: Rod Hartvigsen kitchen and fire, the epicenter where people There was a large presence of the ‘anti-gas’ would drink tea and discuss the next protest community around town. STK and Environs action. Supportive Broome residents would Kimberley had stalls at the popular weekend deliver food and water out to the camp. markets in Broome. Anti-gas groups hosted film A mobile phone known as ‘the gas phone’ was nights, concerts and art exhibitions. There were ‘installed’ by the Broome Community No Gas several organised movements to host anti-gas group, and operated by Nik Weavers. People signage around Broome, with homeowners wanting to receive or send information via text or displaying placards and signs on their property. call were put on the phone’s contacts list. The The campaign involved a complete cross-section phone would text through up to date information of the Australian (and some international) and requests to members of the group. For community from hippies, to millionaires, to example, a text may be received saying all help is tourists and locals, all with a single objective—to required at Black Tank, advice has been received stop the gas hub. There was no action left that a nine strong Woodside convoy had just left undone; activists were everywhere from the Broome. Everybody who can please come to pindan dust to the ivory tower. Black Tank to stop the convoy. People would The campaign became increasingly organised and also use the gas phone to tell other supporters that sophisticated, and parts of the campaign they were driving to the blockade at a certain resembled guerilla action. Permanent camps of time, and had a particular number of seats activists were established at Black Tank and at available for others. Camp Walmadan, close to Woodside’s work site. These logistical procedures enabled quick Eventually, Camp Walmadan established a response to moves by Woodside to access James communication centre, in which an internet aerial Price Point. It also enabled strong communication was installed along with several computers. Here between all anti-gas campaigners, despite many shifts of volunteers, often with an experienced people being affiliated with one of the many media and communications leader, wrote and sent previously mentioned anti-gas community out media releases and contacted politicians and groups. authorities. A landline camp phone was installed, Effort was taken to bolster and uplift community so people could contact the camp with unity and spirit in the face of trauma and information and intelligence. The phone rang intimidation associated with a protest action of with intelligence that a Woodside convoy had just this scale, and the demoralising effect of left Broome, or had reached the Cape Leveque continued arrests, fines, confrontations, police turnoff on the highway, for example. This presence and land clearing. Film nights at Camp information was received from volunteers who Walmadan on Country, celebration days, 56 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 candelight vigils and concerts were often held to area were supremely important to all and a reason reaffirm community strength, love and to protest its destruction. There was no artificial spirituality. This emotional facet of the protest separation of nature, land and culture, and non- years was extremely important. The exhaustive Aboriginal residents of the area had strong nature of the campaign permeated the Broome spiritual and, it could be said, cultural ties to community, the hangover of which still remains. Country. I believe that is an important As Wayne Barker stated in an interview, the characterisation of the community and those that process which dragged out over six years in total were attracted to the campaign. This unity had left traditional owners exhausted. increased the power of the campaign for cultural Alongside of all of that we continue to have heritage and allowed it to be projected all over suicides and old people passing away and a the world. whole lot of stress and it was awful and we're still reeling. We feel like we've been in Why was the site so significant and what 12-rounds of a boxing match with a heavy made it worth protecting? weight champion of the world. It really Albert Wiggan, Bardi man and STK front man knocked us for six (Curtis 2013). spoke in the predawn as he waited with others for Woodside and the police to arrive: What mobilised a community to fight for James Price Point? Many men, women and children thousands of years ago [sic] sacrificed their lives for Broome has always regarded itself as a unique this sacred land, when colonial days came in town, a cultural melting pot of Aboriginal, Asian to destroy this country and take over our and European peoples, who established a culture. We are still trying to keep and community on the remote northwest coast. Rather preserve the cultural heritage of this land, uniquely and specially from my perspective in because it means more to us than any dollar, hindsight, is the dissolving of cultural divisions it means more to us than any mineral, between people of Aboriginal and non-Aboriginal anything that you can rip out of this earth. It heritage. Meaning, the Aboriginal cultural belongs in the earth. It belongs in this history, heritage and worldview is much more ground. And it's our duty, as human beings, to make sure that everything stays intact, to readily adopted by the broader population; make sure everything is preserved, for therefore, the cultural importance of the land is everybody. Not just Indigenous people, but understood and valued by non-Aboriginal everybody around the world. This is special residents, and subsumed as forming part of their country, and people come here from all over heritage also. This adoption of Aboriginal the world to experience what is so special heritage by the wider community is encouraged about it. This is what we fight for (STK by Aboriginal custodians, as is seen by activities 2011e)11. such as the Lurujarri Heritage Trail, and by the In 2013, Woodside shelved its plans for a $45 expressions of reciprocity during the campaign. I billion onshore gas hub at James Price Point, expect this deeper understanding and adoption of choosing instead to pursue a floating LNG option. Aboriginal culture does not only apply to The campaign was successful in stopping the gas Broome, but is the case for other northern towns hub construction at James Price Point; however, it in Australia where there is a large Aboriginal feels unfitting to label the six years of activism as population and daily exposure to Aboriginal a success. The Broome community experienced culture. significant trauma, casualties were sustained, and As such, there was no cultural lines of division 11 amongst those against the gas plant in the Quotes transcribed by the author from Broome community. The cultural values of the referenced YouTube clip. 57 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 rifts formed within families and the town. further and further out of our town, as they Goolarabooloo Law Boss and campaign linchpin did in Perth, Sydney and Melbourne. And Joseph Roe died in early 2014 from a heart our people won't be able to live on land on attack, a year after Woodside announced their their own country. And our ancestors were the first inhabitants (STK 2011e)! abandonment of the James Price Point processing hub. Other Kimberley campaigners have also met As Janet Cox is arrested and carried off by Police untimely deaths through illness. Without (Figure 8), Jabirr Jabirr woman and singer Kerry- implying causality, the stress and confrontation of Anne Cox stands nearby and yells at the crowd: the six-year campaign on spiritual people who This is what our people have to do to stand derive vitality from and have responsibility for up and fight for our rights! For our culture! the land that was threatened, undoubtedly took its For our country! This is what our people toll. have to do! We have no choice but to be here today! (STK 2011e). Land was extensively cleared for preliminary ground testing works at James Price Point, and it is maintained by Goolarabooloo that heritage sites were damaged (Vaughan 2015). Millions of dollars were spent on transporting large numbers of police to the blockade north of Broome, so they could dismantle the peaceful protest and facilitate Woodside’s entry to the James Price Point work site. Activists on site would protest to police about Woodside’s lack of permits under the Aboriginal Heritage Act 1972 and were either ignored or told by the police “there’s nothing we can do about it”. Police would remove activists from the road, stating Woodside had a right to undertake lawful activity in the area. Later, it was revealed that Woodside did not have the Aboriginal heritage permits to disturb Aboriginal sites, although enjoying the support of the Deputy Director General (DDG), Department of Aboriginal Affairs. The DDG overruled the advice of his own departmental officers, who had been investigating claims of site disturbance on the ground at James Price Point in July 2011 and advised Woodside they should halt their activities Figure 9. Joseph Roe holds the move-on notice he (Vaughan 2015). The unacknowledged injustice received from Police in July 2011, requiring him to leave of this and other denigration Broome suffered at the specified area in his traditional country for a stated the hands of the government are still felt today. amount of time. Photo: Rod Hartvigsen Elsta Foy, Aboriginal woman and Broome Shire Although all the individuals who fought the Councillor, was filmed at the protest on Black campaign participated for their own reasons and Tuesday, crying terrified as she tells the interests, the words from Goolarabooloo Law interviewer: Boss Joseph Roe (Figure 9) are particularly I’m scared, because our community is torn poignant: apart by greed of the government. And we’re going to have policemen shift us back 58 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 This is my job mate, this is my life, this is dysfunctional administration by the DAA what I do. I protect my heritage, law and (O’Connor & Sargent 2016; Vaughan 2015). In country, and yet they issue me with this November 2016, it was announced that the well- exclusion zone [Roe produces the move-on documented Aboriginal song cycle that runs notice he has just received from Police, through James Price Point and encompasses prohibiting him for being in that area for 24 Broome would be reassessed as a site by the hours]. I’m doing what I believe is right, and they’re doing wrong. I’m a walked this DAA, as it is not currently covered by Aboriginal country with my grandfather mate, I know heritage legislation (see Vaughan 2015:68-70 for every rock in this country, every site … and a detailed discussion of this site). This has stirred yet they got the cheek to give me this. angst within Broome, with residents concerned What’s this?! I’m sad today mate. But I’m they will suffer excess red tape for any still strong, I’ll come back and fight. I’m not development in town should this song cycle, gone for good yet (STK 2011e). administratively known as LSC11, become Aboriginal heritage protection occurs on many registered (Butterly & Cordingley 2016). Citing levels in Australia, from federal and state hindrance to productivity, the Broome Shire government legislation, administration policies Council (BSC) do not support a heritage listing formulated by heritage professionals, local (nor have they been supportive when the site has governments, community groups and individuals. been up for protection in the past, see Vaughan For some in the Aboriginal community, looking 2015:162), and the Liberal Candidate for the after cultural heritage is their job, their life, it is Kimberley has publicly cast doubt on the what they do. For many top-level policy and traditional owners’ cultural connection to decision makers, insulated by four walls in an Country (Broome Shire Council 2016; Greatorex urban environment, the spirit of the landscape and 2016). Unfortunately for WA, we do not have a the pulsing knowledge of thousands of years of sophisticated enough Aboriginal heritage culture and traditions cannot be felt the same way management system to give Aboriginal heritage it is when on Country. the recognition it deserves without often getting embroiled in a divisive political campaign Conclusion centering on a false dichotomy of development versus protection. As modern WA development and land use expands, heritage protection legislation is under As it stands, Broome has sat comfortably within increasing pressure to be more effective and the song cycle since its development (Vaughan workable– for the protection of heritage as well 2015:97), and registered Aboriginal heritage sites as efficient development (Vaughan 2016). If are found on all types of land tenure in WA heritage legislation is not serving the community including freehold (Nicholas Green pers. comm. to the standards they desire, other actions will be 2016). However, WA’s Aboriginal heritage taken to ensure important cultural heritage is not legislation is unnecessarily bureaucratic and damaged. This is what occurred at James Price outdated, without providing effective heritage Point, where the community engaged in activism protection (Vaughan 2015:91). to halt industrialisation that threatened Aboriginal The lesson learned here is that WA needs to heritage sites. modernise its legislation so legitimate sites can be James Price Point is not an isolated example but recognised, without quarantining large tracts of rather an exemplar of other heritage fights that land from alternate land use. Until we rectify this occur across the state. These conflicts are situation and give all stakeholders procedural exacerbated by WA’s cumbersome and outdated fairness in respect to land use and heritage Aboriginal heritage legislation, as well as management, communities will continue to assert 59 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 their interests in other means, and that will 60 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 49-61 61 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 An online survey regarding cultural heritage management and the law in Australia EMMA BECKETT & JJ McDERMOTT Emma Beckett (Extent Heritage, [email protected]) JJ McDermott (Gavin Jackson Cultural Resource Management, [email protected]) In conjunction with the Australian Archaeological Association's annual conference in 2015 we ran a workshop on Cultural Heritage Management (CHM) and the Law. As part of this workshop we conducted an online survey to gather opinions on the current state of CHM in Australia. Following the workshop we kept the survey open to collect further responses. The survey results have limitations in that some groups and states are clearly under represented. However, the results presented here provide a snapshot of issues raised by respondents and the range of opinions held by various groups of professionals about the effectiveness of current heritage protection regimes, particularly in Western Australia, Queensland and New South Wales. Introduction responses at the beginning of the final session, which was a round table discussion. In view of As organisers of the Cultural Heritage the positive response to the initial results, we Management & the Law (CHM & the Law) decided to keep the survey open for several workshop, our primary objective was to start a months afterwards. discussion about the future of the cultural heritage management industry and the way in The survey was open to the public from the 1st which it currently interacts with the different November 2015 until the 20th April 2016, with legislative frameworks across Australia. Our own 141 responses received during this timeframe. opinions, and those of the other organisers, We estimate that this number represents between regarding the legislation that regulates heritage in 13-19% of the average membership of AAA in this country have been influenced by recently recent years (Matthews and Wallis 2015:2). The working or studying under the Western initial results discussed during the workshop were Australian system. We considered that it was based on 61 responses and the overall trends important to expand the discussion and introduce identified at that time were solidified, but not other perspectives and sources of ideas. We dramatically altered by the increased dataset. created the CHM & the Law online survey prior This paper presents the results of the survey and to the workshop in order to help us facilitate this reflects upon the key issues raised by process. We expected people based in Western respondents. We anticipate that this will provide a Australia (WA) to be strongly represented as starting point for further discussion on the topic. participants in part due to the workshop being held in Fremantle but also due to the controversy Methodology surrounding proposed changes to the Western The online survey was designed to be easy to Australian Aboriginal Heritage Act 1972 (AHA). complete in order to elicit responses to ten We presented a summary of the initial survey general questions about cultural heritage Article History: Received 21/06/2016, Accepted 27/09/2016, Published 13/12/2016 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 management and Australian cultural heritage provided minor speculation regarding the legislation. All questions were assigned multiple reasoning behind the views, but for the most part choice answers, such as ‘agree’ or ‘disagree’, and the text summaries the questionnaire responses. a comments section was offered at the end for The only other exception to this can be found in respondents to provide a more detailed answer if the discussion section of the paper. Here we have they so wished. Questions 1 to 4 were devised attempted to synthesize the results and provide with the intention of gaining an impression of the some future directions for practitioners in CHM. framework in which the respondents formed their opinions. The remaining questions (5-10) focused Question 1: In what role are you involved on the respondents’ opinions about a range of with cultural heritage management? issues, such as the perceived quality of existing Essentially, this question sought to categorise the heritage protection, the role of Aboriginal people roles of heritage professionals and others who in protecting their own heritage and the were interested in contributing to the discussion. expectations of heritage professionals in the The initial groupings were student, academic, current climate. consultant, Traditional Owner / Aboriginal The survey was advertised through a number of consultant and other. relevant organisations and networks, including After examining the results, we were able to the Australian Archaeological Association further break down the ‘other’ category and (AAA), the Australian Association of Consulting identified a number of important roles that had Archaeologists Inc. (AACAI), the Australian not initially been included as options in the Anthropological Society (AAS), the Australasian question. The ‘other’ category indicated that Society for Historical Archaeology (ASHA), as respondents are also engaged in roles within well as various state and federal departments, government, industry, land councils, not-for- university departments, Aboriginal organisations profit, law firms and conservation building. This and other heritage-based societies and finding increased our awareness of these groups consultancies. We also provided a link to the and their involvement in the process of cultural survey on various social networking sites and on heritage management. The altered ‘other’ the online forum, OzArch. The survey was category now reflects the following: (a) interested conducted through the Survey Monkey© website parties, (b) non-specific roles such as ‘manager’, (https://www.surveymonkey.com/) and all data and (c) those who do not specify a role (Figure collection and analysis was performed using this 1). platform’s inbuilt tools12. Unsurprisingly, the majority of respondents are All of the views and opinions presented here were consultants, with government employees, made anonymously and are summarised by the students and academics also represented in authors. We have endeavoured to present the moderate numbers. The low response from results of the survey in an unbiased fashion and Traditional Owners and Aboriginal consultants is as such, the opinions expressed throughout the noteworthy. The survey may not have effectively text are based on information provided by engaged with this group, but it equally reflects a respondents and do not necessarily represent our broader consultation issue and suggests that personal views. In some instances we have Aboriginal people are not engaged in the same forums used by other stakeholders. If anything, this shows that more thorough and targeted 12 Figures 1 and 3 and Tables 1 and 2 were created by the authors using the collected data. discussions with Aboriginal groups on this topic All other figures were automatically generated should be attempted in the future. using the Survey Monkey© platform and have only been modified for style. 63 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 1% 1% 1% Consultant 1% 2% 5% Government 2% 2% Student Academic 6% Academic and Consultant Not for Profit 8% Industry 55% Traditional Owner or Aboriginal Consultant Land Council 16% Conservation Builder Lawyer Other (please specify) Figure 1 In what role are you involved with cultural heritage management? working. In forming this question, we also Question 2: What state or territory in believed that the number of responses would Australia do you predominantly work in? provide a geographical analysis of where the topic of cultural heritage management and the 30% 27.5% law is of concern across the country. The 24.6% 25% breakdown of the 138 responses to this question is illustrated in Figure 2. 20% 17.4% 35% 32.0% 15% 13.0% 30% 25.0% 9.4% 25% 10% 20.1% 20% 5% 2.9% 2.9% 2.2% 15% 10.9% 10% 7.1% 0% ACT NSW NT QLD SA TAS VIC WA 5% 1.6% 1.0% 2.2% 0% Figure 2 What state or territory in Australia do you ACT NSW NT QLD SA TAS VIC WA predominantly work in? Figure 3 State population as a percentage of the total This question asked respondents where they were Australian population (ABS 2016) primarily based, with the view that respondents The relative representation of respondents might have different reactions to the subsequent broadly reflects overall population distribution in questions depending upon the particular Australia (Figure 3). However, there are two regulations under which they were or are main anomalies: (a) WA is overrepresented in the 64 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 sample and (b) Victoria is under represented. 70% Possible explanations for the high number of Aboriginal heritage 60% responses from WA could include the location of Historic heritage the workshop, as well as a deep concern about the 50% proposed changes to the AHA. What does the low 40% response from Victoria indicate? Through the course of the survey a number of respondents 30% indicate an opinion that there is strong protection 20% for Aboriginal heritage in Victoria. It is possible 10% that this perception has made professionals complacent and in turn less likely to engage in 0% discussions about legislative change. Additional discussion of the Victorian system is addressed by respondents in Question 6. slightly slightly significantly significantly Question 3: Would you like to see a No - no change needed - no change No Yes - increase protection increase - Yes Yes - increase protection - increase Yes Yes - decrease - protection decrease Yes change in the way heritage is protected - protection decrease Yes under legislation in your state or territory? Figure 4 Would you like to see a change in the way heritage is protected under legislation in your state or Questions 3 and 4 both focused on how people territory perceive the levels of protection afforded to various forms of heritage across Australia, Proportionally, more respondents from WA, particularly historic and Aboriginal heritage. Queensland and South Australia (SA) feel that These questions were complex because it is protection for Aboriginal heritage needs to be important to understand the level of change that significantly increased. This is particularly visible people are interested in seeing. We also separated when compared against the other states and Aboriginal and historic heritage because we were territories. Responses from New South Wales interested in seeing if there was any perceived (NSW) and Victoria, for example, are more difference between the levels of protection for evenly spread, but overall more people want to sites under the different systems. As one see an increase in protection. Those who feel that respondent identified, this question did not protection should remain the same or be include maritime heritage, and we now recognise decreased were a minority, with only 15% of the that this would be worth rectifying in any future total responses indicating no change and 2% (four discussions on the topic. respondents), from NSW, Victoria and Australian Capital Territory (ACT), opting for decreased The results (Figure 4) demonstrate a clear protection (Table 1). perception from respondents that an increase in protection for historic and Aboriginal heritage in The majority of respondents also feel that there the individual states and territories is currently should be an increase in protection for historic required and many believe this should be heritage. However, in comparison to Aboriginal significant, particularly for Aboriginal heritage. heritage, the results appear much more evenly In order to examine this more closely Tables 1 spread. Interestingly, not a single respondent and 2 separate responses by state and territory, thinks that protection for historic heritage should ordered by total number of responses from each. be decreased (Table 2). 65 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 State Yes - increase Yes - increase No - no change Yes - decrease Yes - decrease Total Count protection protection needed protection protection significantly slightly slightly significantly WA 81% 10% 8% - - 38 NSW 45% 24% 27% 3% - 33 QLD 73% 13% 13% - - 22 VIC 53% 18% 18% 11% - 17 SA 90% 10% - - - 10 NT - 75% 25% - - 4 TAS 75% - 25% - - 4 ACT 33% 33% - - 33% 3 Other 100% - - - - 3 Table 1 Changes to protection for Aboriginal heritage by State/Territory State Yes - increase Yes - increase No - no change Yes - decrease Yes - decrease Total Count protection protection needed protection protection significantly slightly slightly significantly WA 40% 34% 26% - - 35 NSW 58% 24% 18% - - 33 QLD 46% 38% 17% - - 24 VIC 53% 35% 12% - - 17 SA 77% 15% 8% - - 13 NT 33% 33% 33% - - 3 TAS 67% - 33% - - 3 Other 67% 33% - - - 3 ACT - 50% 50% - - 2 Table 2 Changes to protection for historic heritage by State/Territory Question 4: Would you like to see a 70% Aboriginal heritage change in the way heritage is protected 60% under Federal legislation? Historic heritage 50% This question was designed in the same way as 40% Question 3, but instead focused on opinions about 30% protection for heritage afforded by federal legislation. 20% 10% The results (Figure 5) are very similar to those for Question 3 (Figure 4), with the majority of 0% respondents believing that federal heritage protection overall should be increased and that this was most needed for Aboriginal heritage. slightly Very few respondents believe that the protection slightly significantly for either historic or Aboriginal heritage should significantly No - no change needed - no change No Yes - increase protection - increase Yes protection - increase Yes Yes - decrease - protection decrease Yes be decreased, and less than a quarter of all - protection decrease Yes respondents think that there should be no change. Figure 5 Would you like to see a change in the way heritage is protected under Federal legislation? 66 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 Question 5: Do you think Aboriginal and feel that the protection of Aboriginal heritage historic heritage legislation should be suffers as a result of its separation from historic combined? and other types of heritage legislation. As one respondent points out, if Aboriginal heritage In continuing the theme of Aboriginal and legislation does not afford the same level of historic heritage legislation, Question 5 was protection and preservation as other forms of designed to collect opinions about one possible legislation, then it becomes unevenly balanced form of legislative change that would include and is essentially another form of racial combining legislation together. We knew that this discrimination. would be a fairly contentious issue and we expected a division of opinions in the results. Sites containing both historic and Aboriginal Figure 6 clearly confirms this expectation, though heritage values are felt to be the most affected by there is a slight trend towards agreement. the current legislation. Comments indicate that respondents believe these types of sites can fall 35% through the gaps and be destroyed because neither legislation offers adequate protection. 30% Many people feel that by combining legislations 25% and regulations, there would be more potential for 20% discussion and consultation across the broader community. As one respondent suggests, all 15% heritage should be protected under a system 10% based on significance regardless of cultural origins. 5% Don’t Know 0% Strongly Agree Don't Disagree Strongly Many respondents who selected this response feel agree know disagree that this issue has an equal number of positives Figure 6 Do you think Aboriginal and historic legislation and negatives and are therefore unwilling to should be combined? comment further. Some suggest that this question Even though the most commonly selected option would be best answered by Aboriginal people was ‘disagree’, the least selected option was also alone, while others believe that it is an issue that ‘strongly disagree’. Overall, therefore, there is a needs to be decided by the broader community. slight preference towards change with 43.5% Some people who selected this response also indicating agreement, compared with 40.5% suggest that while combining legislation would selecting ‘disagree’ or ‘strongly disagree’. The enhance heritage protection as a whole, it may comments associated with the respondents’ not be possible in practical terms. choices are revealing and provide a good starting point for discussion on the positive and negative Disagree/Strongly disagree aspects of combining Aboriginal and historic The majority of respondents who disagree with heritage legislation. We have summarised the combining heritage legislation feel that it is not a main points below. practical solution logistically or legally due to the contrasting definitions and criteria set out in both Agree/Strongly Agree historic and Aboriginal legislation across There are a number of common themes in the Australia. The idea of combining legislation is comments from respondents who support change. judged to be a simplistic approach to a complex The dominant theme here relates to the issues of set of problems. Furthermore, it is felt that the discrimination and reconciliation. Many people 67 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 issues arising from the variety of heritage comments associated with these responses are legislation are all quite different. discussed below. A number of these respondents think that time and resources would be better spent fixing the 40% issues that currently exist rather than creating a 35% whole new set of problems. It would appear that 30% respondents from Queensland are particularly 25% opposed to combined legislation. Several of these people note that this is something that had already 20% been attempted in Queensland and it is widely 15% regarded as being a failure. An alternative 10% solution is offered by a respondent who suggests having the legislation remain separate, but 5% regulating them under the same government 0% department so as to minimise the issue of Strongly Agree Don't Disagree Strongly agree know disagree discrimination and inequality. Figure 7 Do you agree that Aboriginal people have sufficient power, accorded through legislation, in Question 6: Do you agree that Aboriginal protecting their own heritage? people have sufficient power, accorded through legislation, in protecting their Agree/Strongly Agree own heritage? A few respondents did indicate strong agreement Interconnected with discussions of significance with this statement and feel that Aboriginal and protection, the idea behind this question was communities are actually consulted more to find out how people view the amount of power frequently and are afforded more power than that is afforded to the Aboriginal community in other communities or members of the wider making decisions about their own heritage. This public, particularly when it comes to issue is relevant to historic heritage as well and development issues. Interestingly, the majority of could be extended to include the broader the respondents who agree with this statement community and the question could have been were based in the eastern states, with the highest expanded to include different communities and numbers coming from NSW and Victoria. This the broader public. The importance of exploring suggests that in these states there may well be the reasons behind protecting heritage and the more power afforded to Aboriginal people than in importance of community engagement is other parts of the country. something that has been previously discussed and documented, particularly by North (2006), who Don’t know warns that the increased bureaucratisation of Most people who selected this answer note that heritage protection is leading to the exclusion of this is not their area of expertise because they do the broader community from the process. Without not work in Aboriginal heritage. There is also a the backing or involvement of the community, the distinct feeling from some people that they are question then becomes who are we actually unsure about the actual level of power now protecting heritage for? afforded to Aboriginal people because, while they appear to have sufficient power on paper, in Most respondents feel that Aboriginal people are practice this is not always the case and the not afforded sufficient power to protect their own developer, or indeed the state or territory heritage in Australia (Figure 7). Some of the government, seems to have the final say in what will be protected. 68 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 Disagree/ Strongly Disagree Thus the consultation process sometimes Although many respondents feel that the level of facilitates the opposite of what is intended. power afforded to Aboriginal people varies from Furthermore, a number of respondents point out state to state, there is a strong view that that intangible heritage, such as language and Aboriginal people have very little power in songlines, are particularly at risk under the protecting their own heritage. It is suggested by a current systems nationwide because they are not number of respondents that in states such as well understood by non-Indigenous people. Queensland and Victoria, there is an illusion of Respondents note that the employment of more power and the reality is quite different (as Aboriginal people in cultural heritage indicated above). The Victorian system is management, and more generally within specifically referenced as one that is built on government, could help in addressing some of monetising heritage. Zorzin’s (2014) work was these issues. also highlighted in the comments; this suggests that, while the Victorian system may appear to be Question 7: Do you think that heritage designed to afford more power to Aboriginal professionals are given enough time to people, in reality, only those who are already record and mitigate risk to heritage in a registered and working within the system are way that provides positive outcomes for allowed to have their opinions heard. This then Aboriginal people? has the effect of silencing opinions of those who This question was designed to ascertain if may not be able to work within the system. respondents feel that there are time pressures A further issue regularly raised by respondents is affecting the quality of heritage work in the lack of recourse of Aboriginal people to Australia. Although the question focuses on appeal decisions made about their own cultural Aboriginal heritage, risk mitigation is also heritage. A number of respondents cite the WA pertinent to historic and maritime heritage as system as a specific example. This lack of well. It may be worth examining risk mitigation recourse is seen to be largely driven by key for historic and maritime heritage in more detail stakeholders such as developers and mining in future discussions on this topic. Figure 8 companies, as well as by some heritage illustrates the overall responses to this question. professionals. These players are seen as well- equipped under the system to exert considerable 50% influence on Aboriginal people. In particular, 45% Indigenous land use agreements (ILUAs), which 40% were designed to empower Aboriginal people, are 35% identified as mechanisms for creating additional 30% fractures within Indigenous groups. 25% 20% Many respondents refer to a false perception that, 15% because consultation with Aboriginal people is 10% required, it follows that the level of Aboriginal 5% consultation is high. Respondents also pointed 0% out a number of additional factors impinging on Strongly Agree Don't Disagree Strongly the consultation process. In certain places, the agree know disagree bureaucratic rules around consultation as well as Figure 8 Do you think that heritage professionals are questions regarding who should be consulted are given enough time to record and mitigate risk to heritage increasingly leading to the fracturing of groups, in a way that provides positive outcomes for Aboriginal which in turn creates additional social issues. people? 69 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 Agree/Strongly Agree cultural material recognised as being of any value Few respondents agree or strongly agree with this to the broader community. This view is statement (14.4% of total) and only a small specifically expressed by WA and Queensland number of these clarify their reason with a based respondents, who clearly feel that respect comment. A third of all respondents who agree for heritage professionals has eroded with this statement, and have left a comment, considerably over time. This erosion of respect qualify that they are specifically referring to means that the advice of heritage professionals heritage protection in Victoria, suggesting that lacks authority, and it is also increasingly difficult this state is potentially better equipped than to argue effectively for the protection of cultural others in regards to cultural heritage material. management. One respondent comments that it Respondents also feel that economics work should be up to the consultant to set the most against producing high quality or even best appropriate timeframe according to what is practice heritage work. Developers have financial involved, and this timeframe, once set, should be constraints, and, sometimes, statutory timeframes fixed. The only other perspective offered is that within which they must work. Heritage the existing timeframes are tight but reasonable professionals are, in turn, pressured to provide within the current legislative frameworks. This more for less. The assessment process becomes indicates a degree of resignation to the current more about timeframes and cost saving rather system, and rather than an agreement that the than quality of work. Respondents also consider current timeframes are adequate. the politics surrounding development to be a strong influence on the timeframe as well as the Don’t Know rigour of heritage work. High profile The majority of respondents selecting this option developments are more likely to have adequate work or have worked with either historic or timeframes for heritage consultants and therefore maritime heritage and they feel that this question a greater chance of higher quality work. does not apply to them. Some respondents Respondents also state that the planning process indicate they have adequate timeframes within is set up in such a way that it gives developers too their particular area of work and others do not. much power, thus making best practice difficult Respondents also feel that there needs to be a for heritage professionals. One respondent balance as it is not practical to give unlimited suggests that in order to better regulate the timeframes. As is indicated by one of the process, an independent panel should be respondents, the quality of the outcome is also established to prevent industry using preferred not necessarily related to the length of time consultants. This would, in turn, increase the allocated. diversity of providers and potentially push up the Disagree/Strongly Disagree overall quality. Most respondents do not agree that there is Another issue identified is inadequate lead-in enough time to record and mitigate risk to times. Respondents feel that developers, heritage and generally believe that current particularly in NSW, do not recognise the value legislation is the problem. Respondents from a or complexities involved in heritage management. number of states/territories think that the This means only short time periods are allocated threshold at which legislation protects cultural for completing heritage work, compromising material is too high. In addition to this, many of quality and forcing providers to make last-minute the consultants who selected this answer feel that decisions. As one respondent comments, longer it is incredibly difficult to create positive lead-in times for heritage work would allow for outcomes, while simultaneously fighting to have better quality assessment and recording, and 70 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 would generally provide more positive outcomes requirements for assessing and recording cultural for all involved. heritage objects are clear to heritage professionals. It was important here to understand A number of respondents also note that the whether people believe that there is enough current system lacks incentives for developers to consistency in cultural heritage management for support high quality heritage work as it is not the recording of sites and material. Figure 9 cost-effective. Under the current system it is often summarises the responses to this question. easy to just apply for the relevant permits to destroy cultural sites or material, rather than Agree/Strongly Agree undertake any kind of mitigation or conservation. Overall, fewer respondents agree with this Respondents here feel that it is ultimately a statement than disagree and only a handful of government responsibility to encourage people express strong agreement. Most proponents to conserve and incorporate best respondents who do agree that expectations were practice heritage planning into overall project clearly set out and understood are from NSW or design. They point out that, without government Victoria. The ACT is also mentioned as having a support, it is incredibly difficult to convince clear process of assessment and recording. A few proponents, who are primarily engineers, respondents from WA also agree with this developers or planners, of the benefits of statement; however, it seems that this is not additional heritage work, even when there is a related to any clarity in the current legislative good argument for value to be added to a project. guidelines or regulations, but relates instead to persistent questioning of the regulator by some Question 8: Do you agree that the general expectations of heritage professionals, heritage professionals in this state. with regard to what should be identified A number of respondents indicated that they felt and recorded, are clearly set out and that in some states/territories the expectations are understood? too well defined. This has resulted in a prescriptive and overly legalistic system such that 60% heritage professionals cannot apply their relevant experience or skill sets. Based on comments from 50% other questions we assume that this response relates to Victoria or NSW. 40% Don’t Know 30% A small number of respondents chose this option. Presumably many people have yet to make up 20% their mind on this issue. Many of the respondents 10% selecting this response are students who indicate little or no experience in consulting. 0% Strongly Agree Don't Disagree Strongly Disagree /Strongly Disagree agree know disagree Most respondents think that expectations of Figure 9 Do you agree that the general expectations of heritage professionals are generally unclear. heritage professionals, with regard to what should be Many individuals mention that a lack of identified and recorded, are clearly set out and communication and direction from government understood? agencies is ubiquitous. This is specifically seen as This question was designed to ascertain whether an issue with respondents from WA, many of respondents feel that expectations and whom feel that communication between 71 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 consultants and the regulator is non-existent. insight of past lives of the people who produced Respondents from across the country also suggest these remains. that governments neglect to clarify their The creation of additional professional expectations as conditions change mainly because accreditation for heritage professionals to do so would be ‘too difficult’. Some (particularly archaeologists and anthropologists) respondents also believe that it is more calculated at both state and federal level is offered by one than this, stating that government departments respondent as a solution for increasing purposely avoid clarifying expectations, thus consistency and for making expectations clearer. transferring more risk onto the proponent and This accreditation, according to the comment, consultant. would help ensure that all consultants would use Respondents repeatedly mention the lack of clear consistent and comparable terminology and criteria and basic standards in the WA legislation criteria when recording sites and assessing and regulations. They report that inconsistent significance. To effectively implement this kind standards mean that the most basic elements of of initiative, additional regulation would be the process are not clearly understood by those needed. requiring heritage services, such as local councils and developers. A number of respondents feel Question 9: In regard to established that recently proposed changes to the AHA have criteria for assessing significance of exacerbated this problem. Respondents cite a places and objects, do you think it has range of additional issues here including: poor changed over time? circulation of information and guidance and overall lack of consultation with heritage 50% professionals and Aboriginal people. There is a 45% feeling too that consultants have attempted to 40% clarify issues, but different interpretations of past and possible future regulations have further 35% increased the confusion. 30% Another viewpoint is that some states over 25% emphasise protection of places and objects at the 20% expense of intangible heritage. Respondents 15% suggest broader focus on the distribution of 10% knowledge about Aboriginal history and archaeology as one means to make cultural 5% heritage management more focused on values. 0% Yes - a lot Yes - a little I don't know No This might also allow industry, the general public and Indigenous people alike to better understand Figure 10 In regard to established criteria for assessing the importance of heritage for society as a whole, significance of places and objects, do you think it has rather than making it merely an expensive and changed over time? onerous form of data collection. A number of This question followed on from Questions 7 and other respondents comment that criteria included 8, focusing on the mechanics of assessments by governments in recording forms or on site undertaken by heritage professionals. It set out to cards (specifically in NSW and WA) are poorly ascertain whether or not there was undocumented set out and some add little overall value to the site change to heritage regulations through the recording. Furthermore, respondents feel that the evolution of significance thresholds. We were data collected does not help in gleaning any expecting that there would be some change over 72 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 time, but felt it was important to better recording that should be undertaken during understand the nature of the change: whether it heritage assessments. This is seen to be very had been enforced through official government problematic as it creates a culture of data actions, industrial practices or if they had been collection which is compliance driven and lacks introduced incrementally due to certain an underpinning scientific methodology. ‘fashionable’ trends. Don’t Know Yes - a lot There are very few comments in this section and The results show that more respondents feel that most respondents who select this option feel that significance criteria have changed a lot over time, the question is too vague. They also feel that the than feel they have changed a little, not at all or term ‘significance’ should be separated from site just did not know. Some who selected this recording and the definition should be clarified so response feel that the changes are for the worse, that cultural and archaeological significance are while others say that it is for the better. There are not to be confused. also a number of general comments that do not specify if the change is a good or bad thing, but No rather that it has simply occurred. Respondents Very few respondents commented here. Overall who think that change has been a bad thing also however, respondents feel that the criteria, tend to believe that criteria for significance are particularly as defined by the Burra Charter, have being watered down due to the slipping ethics of not changed. Rather, the issue now lies in how heritage professionals and the political agendas of heritage professionals apply those criteria. This the various regulatory bodies. WA is specifically suggests an issue with comprehension and identified in several comments as a jurisdiction training of professionals working in the heritage where this has happened or is happening. industry as opposed to the legislative regulations themselves. Some respondents also feel that regulatory bodies have been influential in changing criteria for the Question 10: Do you think that all better. Changes noted include a more archaeological material should be sophisticated view about what is significant, recorded regardless of its significance? including the recognition of Indigenous significance, intangible heritage and social value. This final question is closely associated with the previous one about perceived changes in Yes – a little significance criteria. The intention here was to The few comments offered by respondents who establish to what extent respondents feel that selected this option indicate that they believe material, particularly archaeological material, significance criteria has changed for the worse should be recorded. We hoped that this might over time. Many considered significance criteria give us a better understanding as to what heritage to be outdated and outmoded, having not evolved professionals currently define as material of in response to developments such as the Burra significance, as well as to what degree it is worth Charter. Many WA-based respondents feel that recording that material. There is a wide range of the state has ‘no defined significance criteria’, opinions on this topic as indicated by a relatively and this in turn forces industry professionals to even spread of responses selected (Figure 11). devise and implement their own criteria. Concern We knew that this question might prove difficult is also expressed that proponents such as for respondents due to the complex and developers and mining companies attempt to multifaceted meaning of the term ‘significance’. drive the agenda on what type data should be This was a conscious decision as we are more collected, as well as dictating the level of interested in unpacking levels of recording rather 73 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 than defining ‘significance’. Discussions of site material (to at least a basic level), more robust significance can fill an entire volume (see models of past landscape use can then be Hardesty and Little 2009, Sullivan and Bowdler developed. This in turn would allow for a more 1984), and we saw this as well beyond the scope informed view of significance and in the long of the workshop. run, might help avoid overcaution with regards to preservation of material. 35% A number of respondents also acknowledge that the downside of recording all archaeological 30% material is that additional resources would likely be required to oversee the collation and storage of 25% such information. One respondent also notes that 20% the level of recording need not be the same for all material, as this would require some level of 15% significance assessment to occur ‘on the fly’ with material considered to be of lower significance 10% recorded at a basic level. Altering the level of recording depending upon the level of 5% significance would allow for a system that would 0% be able to collect the maximum amount of Strongly Agree Don't Disagree Strongly information while being as cost-effective as agree know disagree possible. Figure 11 Do you think that all archaeological material should be recorded regardless of its significance? Don’t Know It is fair to suggest that the range of opinions and As discussed above, many respondents who comments expressed fundamentally revolve chose this response indicate that a clearer around the practicalities rather than the principle definition of significance is needed before they of this question. The lack of a definition of what can properly articulate their opinions. They also constitutes significance is raised as an issue here note that significance criteria vary remarkably for by a number of respondents and this likely different heritage practitioners (e.g. built and accounts for the relatively high proportion of historic heritage). individuals who choose not to state an opinion. Disagree/Strongly Disagree Strongly Agree/Agree The main argument discerned from the comments Fundamentally, respondents who agree or from respondents who are against recording all strongly agree with this statement feel that all archaeological material is that it is impractical, material should be recorded because significance would be a waste of time and money, and would assessment relies on comparisons to other make the system unworkable. Many respondents material. In other words, in order to properly who choose this option feel that only material of assess the significance of an object or site, some significance warrants any recording and that understanding of how common or rare it is would without a clearer definition of ‘archaeological be needed. This is particularly important when material’, one could arguably record anything material is going to be destroyed. Without prior created by humans. The general feeling here is record of both ‘insignificant’ and ‘significant’ that it would be more effective to spend time and objects and sites there is no way to make money on recording material that clearly furthers comparisons with other material found. As one knowledge of the past. respondent suggests, by keeping a record of all 74 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 Workshop states. Arguably, the legislation in many states and territories reflects outdated social attitudes We presented the preliminary results from this (North 2006:1). This is because in a number of survey at the conclusion of the workshop as a states the current legislation was originally way to start a discussion on future directions for drafted in the 1970s and 1980s; e.g. WA (1972) CHM & the Law. The debate was varied and Tasmania (1975), NSW (1977) and SA (1988). wide ranging and included further details on the This can be contrasted with the fact that the previous talks, as well as discussion about how to majority of respondents (80.9%, as shown in effect positive change in heritage protection. Figure 10) feel that criteria for assessing Ideas included a requirement for additional significance of places and objects have changed professional qualifications, and stronger to some degree over time. It is therefore fair to overarching federal legislation as a way to say that there is a perception that many of the increase consistency across the country and to cultural heritage Acts in use across the country provide support to the various state and territory today are clearly in need of change. legislations. Ongoing dialogue among stakeholders and regulatory bodies is needed for A number of respondents allude to the progress along these lines. Participants suggested effectiveness of the Victorian system and suggest that a good starting place would be for there should be a national move to this kind of representative professional organisations, such as model. Interestingly however, there are also a ICOMOS, AAA and AACAI, to continue the number of contrary opinions offered from discussion and perhaps compile recommended professionals from within that state. The negative legislative guidelines. This would be a positive comments about the Victorian system indicate the push for change and would benefit the discipline importance of being aware of problems that could by showing solidarity in opinion regarding the arise with over-regulation. How then do we find importance of heritage protection. the balance between the perceived under- regulation and over-regulation of cultural heritage Discussion across states and territories in Australia and achieve both a minimum standard and flexibility Although we had a good response to the online for innovation? The first step is to start a national survey, there are a number of limitations with the dialogue between professionals and stakeholders results. In particular, the territories, some states engaged with the varying systems to identify and particular areas of the industry are clearly what works and what does not. From there we under-represented. There are so few respondents can start to develop a roadmap for creating a from the ACT, Northern Territory and Tasmania more consistent and transparent legislation across that it is not possible to obtain a clear idea about the country. In order for heritage to be reliably perspectives on heritage protection in those recorded and protected, significant changes need places. to occur and all parts of the heritage industry The survey responses do provide a good need to work together to make this happen. impression of the range of opinions from It is important that we ensure there is extensive consultants, students and academics in NSW, WA discussion prior to any changes occurring to and Queensland. There are many informative legislation. This discussion should be conducted comments from all sides of the debate about in a way that gives voice to the opinions of all legislation and the regulation of legislation in stakeholders: proponents, consultants, community these states. At the very least, responses indicate members and traditional owners. It is particularly that consultants, public servants, students and important for consultants not to stay impartial academics perceive that there is a problem with because without extensive input from heritage the effectiveness of heritage protection in these 75 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 62-76 professionals, we could easily end up with have been possible. Thanks to all those who legislation that is impractical to implement or attended the CHM & Law workshop, especially favours the reduction in heritage protection. The the speakers and panel members. Finally, a CHM & the Law workshop at AAA 2015 was special thanks to Meg Berry and Sam Harper who intended as a starting point for positive and helped organise the workshop and who were effective change in this direction. Open dialogue involved in the initial drafting of the survey is the only way to allow for flexible and questions. consistent legislation that supports understanding and, ultimately, better outcomes for all References stakeholders. Australian Bureau of Statistics 2016, Australian Demographic Statistics. Latest Issue (23/03/2016), Government of Australia. Finally, we as heritage professionals must Available from continue to voice our opinions about changes to 76 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement) Submitting to the Journal The Journal of the Australian Association of Consulting Archaeologists (JAACA) is a peer reviewed journal that aims to encourage the communication of results, and exchange of ideas and information about issues of relevance to professional practice in Australia. The primary content of the journal is short reports (about 2000-2500 words) on topics such as interesting presentations of surveys, site recording and excavation results, and discussions about aspects of methodology, policy, legislation, public engagement, professional development, ethics etc. Contributions with a strong visual element are encouraged. Longer articles (up to about 5000 words) will also be considered for publication, as will themed special issues or supplements. JAACA is an open access online journal. Articles are published on the AACAI website once they have completed the acceptance process. At the end of each year, the current volume is closed off and a PDF of the complete volume is made available. Opinions expressed in JAACA are those of the authors and are not necessarily the view of AACAI. Editors JAACA is edited by Dr Caroline Bird and Dr Jim Rhoads. Authors wishing to publish in the Journal of the Australian Association of Consulting Archaeologists are encouraged to contact the editors regarding potential articles or ideas for special supplements. The full requirements for format of submissions can be found on the AACAI website. URL: ©Australian Association of Consulting Archaeologists Inc. ISSN 2202-7890